Davis v. Gilead Sciences, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

AT NASHVILLE

TYKISHA DAVIS )

) Case No. 3:20-cv-00619

v. ) Judge Trauger

) Magistrate Judge Holmes

GILEAD SCIENCES, INC. )

MEMORANDUM OPINION AND ORDER

Pending before the Court is the parties’ dispute over the proper scope and specific

protections of a discovery protective order. (Docket No. 17.) By order entered on May 3, 2021,

Judge Trauger referred the dispute to the undersigned for disposition. (Docket No. 20.) The

undersigned has reviewed the parties’ joint discovery dispute statement and finds that this matter

can be resolved on the filed submissions. For the following reasons, the Court finds that a

protective order is appropriate on the terms and conditions provided in the protective order entered

separately.

A. Background

Familiarity with this case is presumed and the underlying facts and procedural history are

not again recited here except as necessary to explain or give context to the Court’s ruling.1 This

is an employment discrimination case in which Plaintiff alleges causes of action for race and

gender discrimination, retaliation, hostile work environment, and an equal pay claim. Plaintiff

served discovery requests on Defendant for production of, among other information, salaries of

nonparty employees of Defendant. The parties generally agree on the need for a protective order,

1 The recited facts and history are taken from the parties’ Joint Discovery Dispute Statement

(Docket No. 17) and, unless otherwise noted, are undisputed.

but have reached an impasse over three specific provisions dealing with (i) to whom confidential

information2 produced in discovery may be disseminated, (ii) filing confidential information under

seal, and (iii) the use of pseudonyms or initials when identifying comparators in court filings.

Defendant argues for a more restrictive dissemination of confidential information.

Defendant also contends that the receiving party intending to use confidential information must

give advance notice to the producing party. Defendant also requests that the parties refer to

comparators by pseudonyms or abbreviations in summary judgment filings.

Plaintiff counters that the restrictive dissemination urged by Defendant “unreasonably

interferes with Plaintiff’s investigation of her claims and Defendant’s defenses.” (Docket No. 17

at 9.) Plaintiff also maintains that Local Rule 5.03 adequately provides procedures for filing

documents under seal and requires no advance notice to the producing party.

B. Legal Standards and Analysis

Federal Rule of Civil Procedure 26(c)(1) permits entry of a protective order “for good

cause” when necessary to prevent “annoyance, embarrassment, oppression, or undue burden”

including forbidding the disclosure of certain information or requiring that confidential

information, including trade secrets, be disclosed under specific terms. Fed. R. Civ. P. 26(c)(1).3

The party seeking a protective order bears the burden of establishing good cause. Nix v. Sword,

2 The Court uses the description of “confidential information” solely for ease of reference

to information that is produced by a party in discovery with that designation. As provided for in

the protective order entered separately, a party’s designation of information as “confidential” for

discovery purposes is not binding on the Court, including for purposes of determining whether to

restrict public access to such information if offered as part of the record in this case.

3 Unless otherwise noted, all references to rules are to the Federal Rules of Civil Procedure.

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11 F. App'x 498, 500 (6th Cir. 2001). However, if confidential information is sought, the burden

is on the party seeking discovery to “offer proof that the protective order would substantially harm

[her] ability to collect the evidence necessary for prosecution of [her] case.” Knoll v. American

Tel. & Tel. Co., 175 F.3d 359, 365 (6th Cir. 1999) (internal citation omitted). Rule 26(c) provides

the trial court with “broad discretion ... to decide when a protective order is appropriate and what

degree of protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).

In contrast, the Sixth Circuit has expressly cautioned against conflating the standards for a

protective order under Rule 26 with the “vastly more demanding standards for sealing off judicial

records from public view.” Shane Group, Inc. v. Blue Cross Blue Shield of Michigan, 825 F.3d

299, 307, (6th Cir. 2016). Additionally, precedential authority directs that, in sealing records, the

district court must set forth specific findings and conclusions that “justify nondisclosure to the

public,” even if neither party objects to the motion to seal. Id. (quoting Brown & Williamson

Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1176 (6th Cir. 1983)); see also Beauchamp v. Federal

Home Mortgage Corp., 658 F. App’x 202, 207-08 (6th Cir. 2016) (district court orders to seal

documents vacated sua sponte for lack of findings and conclusions to justify withholding

documents from the public).4 Generally, “only trade secrets, information covered by a recognized

privilege (such as the attorney-client privilege), and information required by statue to be

maintained in confidence … is typically enough to cover the presumption of [public] access.”

Rudd Equipment Co., Inc. v. John Deere Construction & Forestry Co., 834 F.3d 589, 594-95 (6th

4 The proponent of sealing must provide compelling reasons to seal the documents and that

the sealing is narrowly tailored to those reasons—specifically, by “analyz[ing] in detail, document

by document, the propriety of secrecy, providing reasons and legal citations.” Id. at 207 (6th Cir.

2016) (quoting Shane Grp, Inc. v. Blue Cross Blue Shield of Michigan, supra).

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Cir. 2016) (quoting Baxter Int’l, Inc. v. Abbott Labs., 297 F.3d 544, 546 (7th Cir. 2002)). A

protective order in a case is insufficient cause for sealing a document. Id.

Here, the Court finds that a protective order is warranted for discovery of the salaries and

other personnel information of nonparty employees. Knoll 175 F.3d at 365 (“Such protective

orders are commonly granted … as a means of protecting the privacy interests of nonparties while

yet serving the needs of litigation.”) (internal citations omitted). Regarding the first disputed issue,

the scope of dissemination of information produced as confidential, the Court finds that Plaintiff’s

proposed language is overly broad. As to the second and third issues, filing documents under seal

or in some other way requesting restricted access, such as referring to comparators by pseudonyms,

the Court finds that Local Rule 5.03 governs these matters and provides the mechanisms for the

parties to proceed.

Dissemination of confidential information

The specific language in dispute is whether dissemination can be limited, as Defendant

proposes, in addition to the parties, court reporters, and the Court, to:

Outside counsel employed by the Parties with responsibility for this matter

and who have entered an appearance in this matter, and their respective

associates, clerks, legal assistants, stenographic and support personnel, and

organizations retained by such attorneys to provide litigation support

services in this matter and the employees of said organizations; Experts

retained or employed to assist counsel for the parties specifically for and

in the preparation of this litigation for trial or settlement, and the

employees or agents for these consultants and experts, but excluding any

person regularly employed by a party and any person whose testimony will

consist of lay opinions rather than expert opinions; The authors, addressees

or originators of the “Confidential Information;

Potential witnesses for trial or any other hearing or proceeding in this

litigation (hereafter “witnesses”) with a need to know confidential

information, provided that such documents will remain in sole possession

of his/her counsel and provided that any potential witness agrees to comply

with the terms of this Protective Order;

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Such other persons as hereafter may be designated by written agreement

of all parties or by order of the Court.

(Docket No. 17-1 at 3-4.) Plaintiff contends that her language of allowing dissemination to outside

individuals consisting of

any person who is called upon to assist counsel in counsel’s understanding

of relevant facts or to assist counsel in the preparation of his/her

client’s case, provided that any such person who is not a Party to this case

must agree to be bound by this Agreed Protective Order and provided

further that such persons may not retain any Documents designated as

Confidential Information (Docket No. 17-2 at 3-4)

adequately limits disclosure and dissemination. The Court disagrees.

Defendant’s proposed limiting language includes legal staff and outside litigation support

experts or consultants whom Plaintiff or her counsel retain for assistance in preparation of the case,

as well as potential witnesses. This is a broad universe of parties with a specific purpose for

knowing the confidential information. Plaintiff’s proposed language, however, is much more

general and because of the lack of specificity, more difficult to enforce. For instance, what is

meant by “called upon”? That could be any assistance from formal retention to a casual

conversation. The Court recognizes that Plaintiff’s proposed language includes the limitation that

the person must agree to be bound by the protective order. Nevertheless, that requirement is not

enough, given the breadth of the provision.

Restricting access to information produced as confidential in discovery

The Court finds that Defendant’s proposed procedures for advance notice of a party’s intent

to file documents under seal are unnecessary and inconsistent with the standards articulated by the

Sixth Circuit in Shane Group, Inc. v. Blue Cross Blue Shield of Michigan, 825 F.3d 299, (6th Cir.

2016), and subsequent cases. There is no need for a party intending to use information produced

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as confidential in discovery to give advance notice to the producing party. Local Rule 5.03

provides for all the concerns raised by Defendant.

First, Defendant’s proposed language does not correctly describe the procedures under

Local Rule 5.03. Defendant’s language suggests that the party moving to file a document under

seal must show the bases for such relief, without regard to whether the filing party designated the

information as confidential. However, Local Rule 5.03(b) makes clear that the burden of

demonstrating the heightened standard for restricting public access to the information remains with

the designating party even if the designating party is not the one seeking to file the information.

See Local Rule 5.03(b).

The procedures described in Local Rule 5.03 specifically contemplate and allow for the

possibility of a contest over whether public access to information is properly restricted. The

ordinary motion process provided for in Local Rule 5.03(a) and (b) (and by reference, Local Rule

7.01) requires no more and no less action by the Court than a discovery dispute over whether a

motion to seal can be filed in the first place, which is the procedure Defendant suggests.5

5 Further, because there appears to be some confusion about the procedures under Local

Rule 5.03, the Court clarifies those procedures here. As provided for in that rule and in the

referenced ECF procedures, the document is filed under seal with an accompanying motion to seal.

Further, the party filing the motion to seal should also separately file a redacted version of the

filing, unless impracticable. See Local Rule 5.03(c). If the party filing the motion to seal and

seeking to use the information is the party that designated the information as confidential, that

party bears the burden of demonstrating the bases for restricting public access under Sixth Circuit

authority in the memorandum of law accompanying its motion to seal. However, if the party filing

the motion and seeking to use the information is not the designating party, the motion to seal is

perfunctory and the designating party must file a response to the motion to seal with supporting

facts and legal authority that demonstrate the standards for restricting public access to the

information designated as confidential for discovery purposes. See Local Rule 5.03(b). Either way,

the filing remains under seal until the Court rules on the motion to seal, after the parties have had

an opportunity to address the bases for restricting public access and to request any other relief

should the motion to seal be denied.

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However, the Court does not fully agree with Plaintiff’s proposal, which appears to suggest

that the receiving (non-designating) party has no obligation to file a document containing

confidential information under seal. While it is clear in the Sixth Circuit that designation of

information as confidential pursuant to a protective order for discovery purposes is not a sufficient

basis to restrict public access to that document, Rudd Equipment Co., 834 F.3d at 594-95, the

Court’s local rules do not impose an undue burden on the receiving party that wants to use the

information. As noted above, Local Rule 5.03(b) already allows for the receiving party to file a

simple, obligatory motion to seal, to which the designating party must then respond with the

specific factual and legal authority supporting restriction of public access. This rule strikes the

appropriate balance of allowing for a broad exchange of information by parties in discovery and

use of that information in the litigation by compliance with the Sixth Circuit’s standards for sealing

judicial records from public view.

Use of pseudonyms in summary judgment motions

Here, too, the Court finds an appropriate balance in the use of confidential information,

and one that does not impose an unreasonable burden on the parties. If either party intends to use

comparator references and those comparator references have been designated as Confidential

Information, the party wanting to use the information may do so by using pseudonyms or

abbreviations in a so-called redacted version with an accompanying motion to seal the unredacted

version with full names, which can be filed under seal pending resolution of the motion to seal.

See Local Rule 5.03(a), (b), and (c). The parties can, at that time, make any arguments for allowing

the unredacted version with full nonparty employee names to remain under seal. The Court

declines to make a determination of the propriety of restricting public access to any information in

the context of a discovery protective order.

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C. Conclusion

For these reasons, the Court finds a protective order with the terms and conditions

discussed above, and the additional provisions about which there is no contest, is appropriate. A

protective order is entered separately.

It is SO ORDERED.

(ov RAo-

BARBARA D. HONMES

UMited States Magistrate Judge