Nwachukwu v. Liberty Bank
Decision Date | 01 May 2018 |
Docket Number | Case No. 3:16-cv-00704 (CSH) |
Court | U.S. District Court — District of Connecticut |
Parties | ANTHONY NWACHUKWU, Plaintiff, v. LIBERTY BANK, Defendant |
RULING ON DEFENDANT'S MOTIONS FOR PROTECTIVE ORDER
Pending are two defense Motions for Protective Order [Doc. 54, 59], regarding the ongoing discovery in this civil rights litigation. This ruling will resolve both.
Defendant Liberty Bank ("the Bank" or "Defendant") first requested a protective order by its Motion [Doc 54] of November 17, 2017. I deferred resolution of that Motion, by text order, on December 27, 2017:
The Court is in no position to adjudicate Defendant's present request, where Plaintiff has not provided the requests for production and/or interrogatories which occasioned Defendant's Motion, and where Defendant, for its part, has not complied with Local Rule 7(a)(1)'s requirement to provide a memorandum as to the disputed issues of law. Absent any information on the nature of discovery sought, and the legal basis for denying that discovery, the Court is unable to rule.
By its renewed Motion [Doc. 59], Defendant asks the Court to enter a protective order, pursuant to Federal Rule of Civil Procedure 26(c)(1), in order to exclude certain materials from the Defendant's initial disclosures required of Defendant by Rule 26(a)(1), and to prospectively preclude the discovery of those same materials during the later stages of discovery. Plaintiff Anthony Nwachukwu ("Plaintiff") has filed an Objection [Doc. 61] to the instant Motion, and Defendant has filed a Reply [Doc. 62].
Def. Br. 4. Defendant therefore seeks "a Protective Order from this Court prohibiting the disclosure or discovery of documents or information which might otherwise be subject to disclosure under Rule 26(a)(1), or other discovery."
Defendant is asking for two forms of protection: first, specific relief from the requirements of initial disclosures under Rule 26(a)(1), and, second, prospective and broader protection from anticipated interrogatories and requests for production. Defendant's reply brief attempts to clarify and particularize these alternate bases for protection:
The Defendant filed the Motion for Protective Order in conjunction with its disclosures under Rule 26(a)(1) so as to prohibit the disclosure of discovery of certain documents, should they exist. The Motion for Protective Order was not filed in response to the Plaintiff's interrogatories or requests for production. The impetus for its filing was the requirements of 26(a)(1), which could potentially require a party to violate the law by requiring the disclosure of certain protected documents. Liberty Bank acknowledges that the Protective Order might extend to information or documents also sought in Plaintiff's discovery. However, Defendant intends to respond or object to Plaintiff's discovery in course. The Protective Order is merely an attempt to deal with potential disclosure conflicts that may exist. In that sense, it is reactive to Rule 26(a)(1) and proactive concerning expected discovery.
Under Federal Rule of Civil Procedure 26(c), 1
"Rule 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required." In re Zyprexa Injunction, 474 F. Supp. 2d 385, 415 (E.D.N.Y.2007) (quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984)). Gomez v. Resurgent Capital Servs., LP, 129 F. Supp. 3d 147, 152-53 (S.D.N.Y. 2015) (Sweet, J.). See also Penthouse Int'l, Ltd. v. Playboy Enters., 663 F. 2d 371, 391 (2d Cir. 1981) ().
I will now consider whether Defendant has made the requisite showing of good cause, first as to its purported need to withhold information from its initial disclosures under Rule 26(a)(1), and then as to the need for a protective order governing "other discovery."
Under Rule 26(a)(1)(A), "Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties: (ii) . . . a copy - or a description by category and location - of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment." (Emphasis added). Defendant accurately quotes this language at page 3 of its main brief, but then goes on to mis-characterize Rule 26(a), at page 6: "Rule 26(a) of the Federal Rules for Civil Procedure requires the disclosure of all documents or information Liberty Bank has in its possession that would support its defenses." (Emphasis added). This is incorrect: Rule 26(a) only requires disclosure by a defendant of those documents, stored information, and tangible things that a party "may use" in its defense, not all evidence that "would support" such defense.
The 2000 Advisory Committee notes to Rule 26(a)(1) specify:
(Emphasis added). Defendant argues repeatedly and stridently that merely disclosing the existence of the category of document for which it seeks Court protection could subject it to criminal liability. However, it is difficult to imagine that Defendant has any intention of "using" the documents under discussion in its defense, as such use would, according to Defendant, be a criminal act. I am therefore at a loss as to why Defendant seeks the instant protective order. If Defendant does not intend to use these documents in presentation of its defense, Defendant is under no obligation to disclose the existence or content of these documents during the routine disclosures prescribed by Rule 26(a)(1).
Defendant's Motion is therefore DENIED AS MOOT as to the initial disclosures prescribed by Rule 26(a)(1), and Defendant is directed to be entirely forthcoming in those disclosures, to the extent contemplated by the Rules.
Turning from the issue of preliminary disclosures, for which I find no protective order is needed or justified, I come to Defendant's arguments in favor of a "prospective" protective order regarding further discovery. See Def. Reply Br. at 2.
Defendant argues "that certain federal laws and regulations prohibit a bank, like the Defendant, from disclosing certain documents or information." Def. Br. at 3. Defendant cites, for this proposition, 12 C.F.R. Part 309, 12 C.F.R. Part 350, 12 C.F.R. § 353, 31 C.F.R § 1020, § 314 (a) of the USA Patriot Act of 2001 (P.L. 107-56), 31 C.F.R. § 1010.520(3)(iv)(B), and 31 U.S.C. § 5318(g)(2)(A). Id. Defendant cites, as sole example of the type of document for which protection sought, the statutory and regulatory protections for "suspicious activity reports," ("SARs"):
Id. at 3-4 ( ).
In obtaining a protective order, "[t]he burden of persuasion is clearly on the party seeking the protective order, which must demonstrate a particular need for protection, not a broad allegation of harm unsubstantiated by specific examples." J.T. Baker, Inc. v. Aetna Cas. & Sur. Co., ...
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