Lackey v. United States of America

Background

The parties jointly requested a Privacy Act Order and Protective Order under Federal Rule of Civil Procedure 26(c). The court stated that the order was intended to facilitate discovery of information that might otherwise be restricted by the Privacy Act of 1974 and to protect confidential information disclosed by the parties or by United States agencies, departments, or offices. The court found good cause for entering the order.

What the Order Does

The order authorizes the United States, under 5 U.S.C. § 552a(b)(11), to produce information that otherwise might be prohibited from disclosure under the Privacy Act without first asking the court to decide Privacy Act objections. The order does not require production of information barred by other privileges, statutes, regulations, or authorities.

“Protected Information” includes documents, records, and information containing confidential, proprietary, personal, or similar information, including privileged law-enforcement information and information protected by the Privacy Act. Parties may designate information through interrogatory answers, document markings, or statements and later written notices concerning deposition testimony. A party may challenge a designation in writing, and unresolved disputes must be handled under the applicable federal and local rules, the court’s individual practices, or other court orders.

Protected Information may be used only for this action and generally may not be publicly disclosed. The order identifies people who may receive it, including the parties, their attorneys and support staff, relevant witnesses, experts and consultants, court reporters, and court personnel. Certain recipients must receive a copy of the order and sign an acknowledgment before receiving the information. Deposition questioning about Protected Information must occur only in the presence of authorized persons.

The order also provides procedures for proposed public filings containing Protected Information, including advance notice to the producing party and an opportunity to ask the court to keep materials under seal. It requires Protected Information to be returned or destroyed within 30 days after final disposition of the action, including appeals, subject to the order’s other provisions. It addresses inadvertent failures to designate information, disclosures required by law or court order, disclosures to government authorities, and the continuing effect of the order after the case ends.

Limits of the Ruling

Judge Jesse M. Furman expressly stated that the order does not decide whether any particular document or category of information is protected by the Privacy Act, discoverable, relevant, or admissible. It also does not waive any party’s defenses, objections, claims, or privileges. The court further stated that it had not reviewed the documents referenced in the stipulation and made no finding that they were confidential. The court did not authorize the parties to file documents under seal without a separate court order, and any sealing request remains subject to the presumption favoring public access to judicial documents.