Cohen v. Brown University CV-99-485-B 05/12/00

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Amy Cohen, et a l .

v. Civil No. 99-485-B Opinion No.

Brown University, et a l .

MEMORANDUM AND ORDER

Plaintiffs prevailed in a class action alleging that Brown

University violated Title IX of the Education Amendments of 1972,

. Accordingly, they are entitled to

recover the costs and reasonable attorneys' fees that they

incurred in prosecuting their claims. See

(1994

& Supp. 19 9 6).

On May 19, 1999, Magistrate Judge David Martin determined

that plaintiffs were entitled to discovery concerning the

attorneys' fees and costs that Brown incurred in defending the

class action (the "fee information") because this information may

be relevant to Brown's challenge to plaintiffs' fee request. See Mem. and Order Granting in Part Pis.' Mot. for Limited Disc, and

Mot. to Fixing Time (R.I. Doc. #294) at 5-8. On January 18,

2000, the Magistrate Judge granted Brown's request for a

protective order preventing plaintiffs from publicly

disseminating the fee information. See Protective Order (R.I.

Doc. #309). He also ruled that while plaintiffs could refer to

the fee information in pleadings and memoranda filed with the

court, they could not, without prior authorization by the court,

publicly disseminate copies of such pleadings or memoranda. See

id.; Mem. and Order Granting Mot. for Protective Order (R.I. Doc.

#308) at 6 n.3. Plaintiffs then filed this appeal challenging

the protective order.1

I review the protective order to determine whether it is

"clearly erroneous or contrary to law."

(b) (1)

1 Brown argues that I should reject the appeal because plaintiffs' counsel rather than the plaintiffs themselves are challenging the protective order. See Mem. in Opp'n to Appeal from Order of United States Magistrate Judge (Doc. #7) at 2-4. I reject this argument because the record contains no evidence to support Brown's assertion that plaintiffs' attorneys are acting without the consent of their clients.

- 2 - (A) (1994)

I.

Fed. R. Civ. P. 26(c) authorizes a district court to issue a

protective order "for good cause shown." Fed. R. Civ. P. 26(c).

In construing this requirement, the First Circuit has held that

the party seeking a protective order has the burden of showing that good cause exists for the issuance of that order. It is equally apparent that the obverse is also true, i.e., if good cause is not shown, the discovery materials in question should not receive judicial protection and therefore would be open to the public for inspection.

Public Citizen v. Liggett Group, Inc.,

(1st

Cir. 1988) (quoting In re Agent Orange Prod. Liab. Lit.,

(2d Cir. 1987)). The court also observed that " [a]s

a general proposition, pretrial discovery must take place in

public unless compelling reasons exist for denying the public

access to the proceedings." I d . (quoting American Tel. & Tel.

Co. v. Gradv,

(7th Cir. 1978)).

- 3 - II.

The Magistrate Judge clearly erred in issuing the protective

order because Brown failed to support its request with specific

evidence that it will suffer serious injury if the order is not

issued. Brown does not assert that the fee information is

privileged. It does not argue that disclosure will compromise

its litigation strategy or allow its competitors to commercially

exploit the fee information. Nor does it suggest that disclosure

will adversely affect the privacy interests of any employee or

student. Indeed, Brown has not expressly described how it will

be harmed if the fee information is publicly disclosed.2

2 Brown states that it opposes disclosure because it fears that plaintiffs will use the fee information in a public relations effort to "bully other schools (at Brown's expense)." Mem. in Opp'n to Appeal from Order of United States Magistrate Judge (Doc. #7) at 12. To the extent that Brown is suggesting that the protective order is warranted because it will be embarrassed if the fee information is released, I reject this argument. See Glenmede Trust Co. v. Thompson,

(3d Cir. 1995) (concluding that corporate embarrassment was not "good cause" for protective order); 6 James Wm. Moore et a l ., Moore's Federal Practice 5 26.105[8][a] (3d ed. 1999) ("A risk of revelation of information that might be unpopular or might raise questions unrelated to the litigation is not sufficient to justify a protective order on ground of confidentiality.").

- 4 - Because Brown failed to produce any specific evidence that

it will be seriously injured if the fee information is publicly

disseminated, the Magistrate Judge was forced to base his finding

of good cause on Brown's assertion that the fee information

should be protected because it is "financial information" that

Brown has chosen not to release to the public. See Mem. and

Order Granting Mot. for Protective Order (R.I. Doc. #308) at 2-4.

However, a generalized statement that Brown will be injured in

some unspecified way by the publication of otherwise confidential

information cannot, by itself, satisfy Rule 26(c)'s good cause

requirement. See Glenmede Trust Co. v. Thompson,

(3d Cir. 1995) (concluding that good cause requires evidence

of a "clearly defined and serious injury"). If it were

otherwise, protective orders would be the general rule rather

than the exception.

Brown also suggests that the protective order is justified

because the fee information does not concern to the merits of

plaintiffs' Title IX claims. See Mem. in Opp'n to Appeal from

- 5 - Order of United States Magistrate Judge (Doc. #7) at 4. I

disagree. Plaintiffs are seeking more than one million dollars

in attorneys' fees and costs. See Mem. and Order Granting in

Part Pis.' Mot. for Limited Disc, and Mot. to Fixing Time (R.I.

Doc. #294) at 2 & n.l. Brown has attacked plaintiffs' fee

request as excessive and the Magistrate Judge has determined that

the fee information may be helpful in evaluating Brown's

argument. When the parties call upon a judicial officer to

resolve such an important dispute, the public has a substantial

interest in having access to information that may have a bearing

on the decision-making process, regardless of whether the

information concerns the merits of plaintiffs' underlying claims.

In any event. Brown's argument turns on its head the presumption

in Rule 26(c) that discovery material obtained for a legitimate

purpose should be available to the public absent a showing of

good cause for nondisclosure. See Public Citizen,

8 8-90; San Jose Mercury News, Inc. v. United States Dist. Court-

-N. Dist. (San Jose),

, 1103 (9th Cir. 1999); In re

- 6 - Agent Orange Prod. Liab. Lit.,

. Brown cannot

avoid its burden to demonstrate that the disclosure of the fee

information is will cause it serious injury simply by claiming

that the fee information is relevant only to the issue of

plaintiffs' attorneys' fee claim.

Finally, Brown argues that I should remand this matter to

the Magistrate Judge for further hearings if I cannot sustain the

protective order on the present record. See Mem. in Opp'n to

Appeal from Order of United States Magistrate Judge (Doc. #7) at

12-13. I reject this argument. Brown had ample opportunity to

produce a full evidentiary record in support of its request when

it originally sought relief from the Magistrate Judge. It has

offered no explanation for its failure to do so. It is time to

bring the matter to a conclusion. Accordingly, I reject Brown's

request for a remand for a further hearing.

III.

For the reasons set forth in this order, I vacate the

- 7 - Magistrate Judge's January 18, 2000 protective order.

SO ORDERED.

Paul Barbadoro Chief Judge

May 12, 2000

cc: Beverly Ledbetter, Esq. Julius Michaelson, Esq. Sandra Duggan, Esq. Arthur Bryant, Esq. Lynette Labinger, Esq. Raymond Marcuccio, Esq. Amato DeLuca, Esq. Clerk, USDC-RI