JENNIFER L. THURSTON, Magistrate Judge.
In this action and in the companion case, the Court granted a stipulated protective order which sought to preclude from public view sensitive information about wards and former wards of the court, personnel investigations and other confidential records. (Doc. 17) The Court maintained the confidentiality of these records over time by sealing records that otherwise would be available on the public docket. (Docs. 58, 59, 65-73, 74-76, 79, 94, 110, 112-117, 126, 131-134) Though the Court was prepared to dispense with the majority of the protections for the information for purposes of the trial only (Doc. 83 at 8, 47), settlement of the matter meant that this never occurred.
Now before the Court is the motion of Mr. Anderson to modify the protective order to allow him to use deposition testimony given in this action in a related administrative process. (Doc. 145) Though the County of Kern does not oppose this motion (Doc.149), the plaintiff does (Doc. 150). She argues that the protective order was designed not only to protect information related to Mr. Anderson but also information related to her.
For the reasons set forth below, the Court
In support for his motion to modify the protective order, Mr. Anderson offers the declaration of his attorney for the administrative process, Mr. Collins. Mr. Collins argues that the Court has so chipped away at the protective order that it no longer serves the purpose for which it was entered in any event. (Doc. 145-2 at 3) As noted above, however, is argument is groundless because, though the Court was prepared to allow the use of sealed and confidential information at trial despite the protective order, settlement of the action prevented this from coming to pass. (Doc. 83 at 8, 47) To the contrary, despite the extraordinary burden that sealing documents places on the Court's time and the resources of its staff, is consistently sealed documents that would reveal confidential information about the parties and witnesses. (Docs. 58, 59, 65-73, 74-76, 79, 94, 110, 112-117, 126, 131-134)
On the other hand, Mr. Anderson asserts that if the motion to modify is not granted, he will be forced to undergo the expense of duplicating these discovery efforts in order to "defend" against the administrative charges. (Doc. 145-2 at 2, 3) However, as pointed out by Mr. Collins, a
In this federal litigation, no witness had the right to refuse to give testimony. Indeed, a failure to submit to a deposition after notice or a subpoena, ultimately, could have resulted in stiff contempt penalties. Presumably, the witnesses who submitted to deposition, appreciated that had no choice than to give testimony. Presumably also, they were aware that doing so was subject to the protective order in place. Neither Mr. Anderson nor Mr. Collins makes any showing that the witnesses at issue would have freely submitted to deposition absent compulsion and absent the protective order.
On the other hand, the Court is well aware that with regularity, employees and employers do appeal to the Fifth District Court of Appeal when the administrative process does not turn out as they had hoped. When this occurs, there is no assurance that the records in either the trial court or the court of appeal are protected from public view. To the contrary, once there is a petition for writ of mandate or an appeal filed, the otherwise confidential records, including the briefs filed and the opinions issued, are typically open to public view. See, e.g.,
In addition, despite Mr. Collins' suggestion that allowing the use of these transcripts would preclude further emotional trauma for the witnesses by avoiding making them again recount their version of the events, the
Finally, Mr. Collins asserts that this Court has authorized the sharing of information by Mr. Weakley with Mr. Collins. (Doc. 145-2 at 3-4) He cites to no docket entry permitting that. Indeed, though this Court has required Mr. Weakley to share information gained through the § 827 petition filed by Mr. Collins with other counsel in this case, it has not authorized anyone to share information gained in this litigation outside of this litigation.
Based upon the foregoing, the Court
1. The motion to modify the protective order (Doc. 145) is
IT IS SO ORDERED.