Martinez v. United States Of America

Background

Richard Martinez sued the United States of America, several individual federal defendants, the GEO Group, Inc., Kingsbrook Jewish Medical Center, the Brooklyn Hospital Center, Philip McPherson, M.D., and John/Jane Does Nos. 1-10. The opinion states that Martinez asserted claims under the Federal Tort Claims Act, Bivens v. Six Unknown Named Agents, and state law.

The parties jointly requested a Privacy Act Order and Protective Order under Federal Rule of Civil Procedure 26(c). They explained that records sought in discovery could contain information about individuals that might be protected by the Privacy Act of 1974, 5 U.S.C. § 552a. The court found good cause for entering the order.

Order’s Requirements

The order authorizes the federal defendants, under 5 U.S.C. § 552a(b)(11), to produce information that otherwise could not be disclosed under the Privacy Act when disclosure is permitted by a court order. It does not require production of information barred from disclosure 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 materials by marking them “Subject to Protective Order.” A party challenging a designation must give written notice, and unresolved challenges must proceed under the applicable federal and local rules and court orders.

Protected Information may be used only for this action and may not be publicly disseminated or disclosed except as the order permits. The order identifies permitted recipients, including the parties and their counsel and staff, relevant witnesses, experts and consultants, court reporters, and other people authorized by the court. Recipients must receive a copy of the order and are prohibited from disclosing the information to unauthorized people.

The order also governs deposition questions and transcript portions involving Protected Information. A party intending to publicly file such material must give the producing person at least ten days’ advance written notice, allowing an application to file it under seal. Required disclosures to unauthorized recipients generally require at least fourteen days’ advance notice to the producing party, subject to the order’s exceptions for earlier disclosure required by law or court order.

Within 30 days after final disposition of the action, including appeals, Qualified Persons other than counsel for the parties must return or destroy Protected Information and certify destruction when applicable. The order includes procedures for correcting an inadvertent failure to designate material and requires return or destruction of improperly designated materials within five business days after corrected copies are received.

Ruling and Effect

Judge Valerie E. Caproni entered the stipulated Privacy Act and protective order. The order expressly does not decide whether any document or category of information is discoverable, relevant, or admissible, and it does not waive any defense, right, objection, privilege, or other protection. It also preserves the parties’ ability to seek additional protection or disclosure and allows disclosure to governmental authorities for criminal-law enforcement or civil enforcement and regulatory proceedings.