Doe v. Brisam Clinton LLC

Background

Jane Doe (K:S.) moved for a protective order under Federal Rule of Civil Procedure 26(c). That rule permits a court, for good cause, to protect a person from annoyance, embarrassment, oppression, or undue burden or expense. The court explained that the party seeking protection must show a clearly defined, specific, and serious injury that would occur without the order.

The proposed order concerned the public disclosure of the plaintiff’s identity and information related to her allegations. The opinion refers to the plaintiff as a victim of sex trafficking and recognizes that a person who has kept such information confidential may have an interest in protecting it even after filing a lawsuit.

The parties’ positions and the court’s analysis

The defendants objected that the proposed order would restrict them from publicly disclosing the plaintiff’s identity without imposing a reciprocal restriction on the plaintiff. They asked the court to prohibit the plaintiff from publicly discussing the case or its underlying allegations while the case was pending. The court declined to restrict the plaintiff from publicly disclosing information about herself that she knew and obtained independently of the discovery process.

The court nevertheless required the plaintiff’s proposed order to include representations about the efforts she had made to keep her identity confidential, the success of those efforts to the best of her knowledge, and her future intent to maintain confidentiality. The existing proposal did not include those representations.

The defendants also objected that the proposal did not allow them to disclose the plaintiff’s identity to government agencies and personnel without first notifying her. The court found that objection well-founded and directed that the revised order permit disclosure when necessary to litigate claims or defenses or to comply with obligations or requirements, including law-enforcement requirements.

The parties agreed that defendants could disclose the plaintiff’s identity without notice to certain persons who were identified in defendants’ proposed order, and they agreed on language concerning disclosure of the trafficker and the trafficker’s associates. They disagreed about whether potential, anticipated, or actual fact witnesses and their lawyers must sign an undertaking—a written promise to follow confidentiality requirements—before receiving the plaintiff’s identity. The court reserved ruling on that issue and directed the parties to submit a proposed order requiring an undertaking for the time being. After the court approved the order and the identities were exchanged, the parties would brief whether an undertaking was required or whether another procedure would better balance confidentiality and the defendants’ ability to investigate and present a defense.

The court also agreed that defendants had justified two categories of confidential documents, including an “attorneys’ eyes only” category, but found that category’s current definition too vague and broad. It directed the parties to refine the language and discuss whether a different pseudonym should be used.

Disposition

Judge Lewis J. Liman denied the motion for a protective order without prejudice to renewal through a revised protective order consistent with the memorandum and order, to be submitted on or before September 18, 2023. The Clerk of Court was directed to close docket entry 109. The court did not decide the undertaking issue in this order.