Opinion
CIVIL ACTION NO. 03-2439
September 16, 2003
MEMORANDUM AND ORDER
Presently before the Court is Defendants' Motion to Renew Request to Approve Revised Consent Protective Order (Docket No. 14). For the reasons discussed below, Defendant's motion is DENIED with leave to renew.
I. BACKGROUND
Plaintiff Karen Lee Gaul ("Plaintiff") brings suit against her present employer, Acuity Specialty Products Group, Inc. d/b/a Zep Manufacturing, Inc., National Service Industries, Inc., and Acuity Specialty Products Group, Inc., alleging claims under Title VII of the Civil Rights Act, the Equal Pay Act, and the Pennsylvania Human Relations Act. The parties jointly proposed to designate as "confidential" certain documents sought in Plaintiff's discovery requests, including personnel files of Defendants' employees who are not parties to this lawsuit and Defendants' sales and other financial information. On August 12, 2003, the Court dismissed with leave to renew the parties' Consent Protective Order because the parties failed to prove good cause for the issuance of the protective order. On August 25, 2003, Defendants filed a Motion to Renew Request to Approve Revised Consent Protective Order.
Defendant National Service Industries, Inc. ("NSI") disputes that this Court has personal jurisdiction over it. As such, for the purposes of this Motion, NSI expressly preserved all its defective service and jurisdictional defenses.
II. LEGAL STANDARD
Rule 26(c) empowers the Court to issue protective orders "which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Fed.R.Civ.P. 26(c). The presumption in the Third Circuit is that there exists a right of public access to judicial proceedings and judicial records. See Littlejohn v. Bic Corp., 851 F.2d 673, 677-78 (3d Cir. 1988). Nevertheless, while the Court possesses discretion over whether the presumption of public access may be overcome, protective orders cannot be granted capriciously. See Taffinger v. Bethlehem Steel Corp., No. Civ. A. 00-4668, 2001 WL 1287625, at *1 (E.D. Pa. Oct. 24, 2001). A protective order is still an exceptional form of relief to be granted only where the most serious prejudice is threatened, even — and perhaps especially — where the parties seek it jointly. See Bryan v. Pep Boys-Manny, Moe and Jack, No. Civ. A. 00-1525, 2000 WL 1367600, at *1 (E.D. Pa. Sept. 21, 2000) (quoting Nault's Auto. Sales, Inc. v. Am. Honda Motor Co., Inc., 148 F.R.D. 25, 43-44 (D.N.H. 1993)).
A showing of "good cause" is a threshold requirement for the protection of discovery materials. See Pansy v. Borough of Stroudsburcr, 23 F.3d 772 (3d Cir. 1994). "Good cause is established on a showing that disclosure will work a clearly defined and serious injury to the party seeking closure. The injury must be shown with specificity." Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984). "Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning," do not support a showing of good cause. Cipollone v. Licrcrett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986).
In determining whether "good cause" exists, the federal courts have adopted a balancing approach, under which the following factors may be considered: (1) whether disclosure will violate any privacy interests; (2) whether the information is being sought for a legitimate purpose or for an improper purpose; (3) whether disclosure of the information will cause a party embarrassment; (4) whether confidentiality is being sought over information important to public health and safety; (5) whether the sharing of information among litigants will promote fairness and efficiency; (6) whether a party benefitting from the order of confidentiality is a public entity or official; and (7) whether the case involves issues important to the public. See Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995). A party desiring a protective order must demonstrate specifically, through an application of these factors, that disclosure would work a clearly defined and serious injury upon him. See Pansy, 23 F.3d at 786. The fact that such an order is sought jointly by the parties in a non-adversarial manner does not excuse the Court from its duty of scrutinizing the merits of a proposed protective order.
III. DISCUSSION
The Court recognizes that this case concerns private parties to a lawsuit, which arguably is of little legitimate public interest. See Pansy, 23 F.3d at 788 ("[I]f a case involves private litigants, and concerns matters of little legitimate public interest, [these considerations] should be . . . factor[s] weighing in favor of granting or maintaining an order of confidentiality."). Moreover, this case does not concern matters of public health and safety; nor does it implicate a public entity or official. Further, the parties stipulate that certain information and documents should receive protection from disclosure. Nevertheless, the parties fail to establish the requisite good cause that warrants the Court's approval of the proposed Revised Consent Protective Order.
The parties seek to deem confidential two categories of documents: (1) documents that contain salary and benefits information, such as personnel files and performance evaluations, of current and former employees of Zep, including Plaintiff; and (2) documents that contain financial information, such as sales figures, customer pricing lists, and customer lists. See Mot. to Renew Req. to Approve Revised Consent Protective Order at 3, 5-6.
A. Personnel Files
In support of their proposal, the parties contend that disclosure of personnel information "implicates privacy rights of individuals who are not parties to this action, as well as those of Plaintiff." Id. at 5. Further, disclosure "could cause undue and severe embarrassment to these individuals." Id.
The Court recognizes that "[t]here exists a strong public policy against the disclosure of personnel files." Norton v. F.H. Paschen, Inc., No. Civ. A. 96-7179, 1998 WL 13270, at *3 (E.D. Pa. Jan. 15, 1998) (quoting In re the One Bancorp Sec. Liticr., 134 F.R.D. 4, 12 (D. Me. 1991)); but see Vearlincr v. Bensalem Township Sch. Dist., No. Civ. A. 94-7711, 1996 WL 119984, at *1 (E.D. Pa. Mar. 18, 1996) ("There may well be information in a typical personnel file, however, which is not sensitive and does not implicate legitimate privacy interests, e.g., an employee's job title, job description, hiring date, assigned work location."). However, in order for the Court to issue a protective order under the standard promulgated in Pansy, the parties must show withspecificity the injury or injuries they will suffer. See Publicker, 733 F.2d at 1071 (emphasis added).
In Frupac Intern. Corp. V. M/V "CHUCABUCO", No. Civ. A. 92-2617, 1994 WL 269271, at *2 (E.D. Pa. June 15, 1994), the parties sought to prohibit disclosure of "[a] 11 personal data, salary levels and performance reviews and other performance analyses of the parties and any other employees or ex-employees." The parties, however, failed to "establish the specificity and relevance of the information sought to be protected."Id.Further, the parties' request was "too broad, as it applies to each and every employee or ex-employee of the parties, regardless of their involvement in this case." Id. As a result, the court concluded that it could not approve the order. See also Makar-Wellbon v. Sony Elec., Inc., 187 F.R.D. 576 (E.D. Wis. 1999) (declining to issue a protective order in a Title VII employment discrimination case where the parties sought "to protect information `pertaining to personnel files or confidential personnel-related documents concerning Defendant's employees and/or former employees,'" because "[i]n an employment discrimination case of this type, the parties' proposed order could cover a lion's share of the material produced in discovery").
Similarly, the parties here request the Court's approval in designating personnel files, employment benefits information, and performance evaluations as confidential. While the parties' Motion addresses the factors enumerated by the Third Circuit in Glenmede, 56 F.3d at 483, they fail to recite any concrete reasons for the requirement of a protective order. Rather, the parties rely on conclusory statements that the release of documents "implicates privacy rights of individuals who are not parties to this action, as well as those of Plaintiff" or may cause "undue and severe embarrassment to these individuals." Mot. to Renew Req. to Approve Revised Consent Protective Order at 5. Pansy requires specificity in describing the interests to be protected and the Court will not require a confidentiality agreement absent a showing that the interests of the parties in maintaining confidentiality outweighs the public interests in disclosure. See also Doe v. White, No. Civ. A. 00-0928, 2001 WL 649536, at *2 (N.D. 111. June 8, 2001) ("Without a specific demonstration of fact . . . `conclusory statements are not sufficient'" for a protective order to issue.) (citation omitted). Without a detailed description of the documents sought or the alleged confidential information contained therein, the Court will not require a confidentiality agreement for production of this information.
The Third Circuit has recognized that "[w]hile preventing embarrassment may be a factor in satisfying the `good cause' standard, `an applicant for a protective order whose chief concern is embarrassment must demonstrate that the embarrassment will be particularly serious.'"Pansy, 23 F.3d at 787 (quoting Cipollone, 785 F.2d at 1121). Otherwise anxious parties could cloak the legal process with secrecy in even the most mundane cases. See Glickstein v. Neshaminy School Dist., No. Civ. A. 96-6236, 1998 WL 83976, at *2 (E.D. Pa. Feb. 26, 1998).
B. Financial Information
With respect to the financial documents, Defendants argue that disclosure of such information "implicates the performance of the various sales representatives or managers" and that such information is "commercially sensitive and could have a negative effect on the competitive position of Defendant" if disclosed. Mot. to Renew Req. to Approve Revised Consent Protective Order at 6.
In Maxnet Holdings, Inc. V. Maxnet, Inc., No. CIV. A. 98-3921, 1999 WL 715189, at *2 (E.D. Pa. Sept. 13, 1999), the parties sought to prohibit disclosure of "confidential financial information," arguing that the information was "valuable competitive information" and that "disclosure could be of great value to the parties' competitors and of little interest to the public at large." The parties, however, failed "to provide a single specific example of harm." Id. Consequently, the court concluded that it could not issue the protective order. See also Frupac, 1994 WL 269271, at *2 (denying a protective order for "[t]rade secrets or other confidential research, development or commercial information within the meaning of Fed.R.Civ.P. 26(c)(7)" because "the parties fail[ed] to allege with specificity what information should be protected and why").
Similarly, the parties here request the Court's approval in designating the sales figures, customer lists, and customer pricing information as confidential. See Mot. to Renew Req. to Approve Revised Consent Protective Order at 3. However, the parties fail to "provide a single specific example of harm." Maxnet, 1999 WL 715189, at *2. Rather, the parties simply contend that such documents, if released, "[are] commercially sensitive and could have a negative effect on the competitive position of Defendant." Mot. to Renew Req. to Approve Revised Consent Protective Order at 6. As noted earlier, Pansy requires that parties allege with specificity what information should be protected and why. Without a detailed description of such information or the alleged confidential information contained therein, the Court will not require a confidentiality agreement for production of this information.
IV. CONCLUSION
The parties' proposed Revised Consent Protective Order fails to state with specificity what information should be protected or what interest the parties have in maintaining confidentiality. Accordingly, the Motion to Renew Request to Approve Revised Consent Protective Order is denied with leave to renew.
The Court also notes that the parties have the option of agreeing privately to keep information concerning the Defendant's records confidential and may enforce such agreement in a separate contract action. See, e.g., Aetna Casualty Surety Co. v. George Hyman Const. Co., 155 F.R.D. 113, 115 (E.D. Pa. 1994); Frupac, 1994 WL 269271, at *3 (recognizing parties' ability "to stipulate among themselves to whatever confidentiality they reasonably, lawfully and ethically conclude is appropriate").
An appropriate Order follows.
ORDER
AND NOW, this 16th day of September, 2003, upon consideration of Defendant's Motion to Renew Request to Approve Revised Consent Protective Order (Docket No. 14), and for the reasons set forth in the accompanying Memorandum, it is HEREBY ORDERED THAT the request is DENIED WITH LEAVE TO RENEW.