Gary T. MARGIOTTA, Plaintiff, v. CITY OF GLOVERSVILLE, et al., Defendants 6:07-CV-0560 (DNH/GHL) United States District Court, N.D. New York Signed August 11, 2008 Lowe, George H., United States Magistrate Judge ORDER *1 The parties have submitted letter-briefs on a variety of issues. The Court heard oral argument on July 16, 2008, and will address each issue separately. 1. Depositions of Avon Officials Defendants subpoenaed for depositions as non-party witnesses three officials of the Village of Avon. Plaintiff opposed the depositions. (Dkt. Nos. 56 and 57.) At oral argument Plaintiff’s counsel advised that he was withdrawing his opposition to the depositions. 2. Rule 68 Offer of Judgment Defendants served upon Plaintiff, but did not file, an Offer of Judgment pursuant to Rule 68 of the Federal Rules of Civil Procedure. Plaintiff electronically filed a “Rejection of Defendants' Offer of Judgment,” to which was attached the Offer. (Dkt. No. 48.) On July 1, 2008, the Court issued an Order striking this document from the Court’s file, pending oral argument. (Dkt. No. 50.) At the oral argument Plaintiff’s counsel represented that should there be any further Offers of Judgment by Defendants he would not file anything in response. 3. Request for Admissions Plaintiff sought a protective order striking Defendants' Request for Admissions. (Dkt. No. 52.) Defendants opposed the request. (Dkt. No. 54.) At oral argument the Court stated its reasons for denying Plaintiff’s request, but extended Plaintiff’s time to respond through July 30, 2008. 4. Miscellaneous Discovery Issues In letter submissions the parties addressed several additional discovery issues. (Dkt. Nos. 45-47.) At oral argument the Court ruled on these issues. Those rulings included the following: a. Following Plaintiff’s depositions of Defendants Gunderson and Hughes, Plaintiff is granted leave to seek sanctions for their alleged spoliation of evidence. b. The parties will confer in good faith with respect to Plaintiff being provided with a mirror image of Defendant Gunderson’s hard drive. If these good faith discussions are unsuccessful, Plaintiff may seek a court order. Plaintiff is granted leave to seek similar relief with respect to the hard drives of any other Defendants. c. Plaintiff is granted leave to move for discovery of materials concerning the employment termination of Police Chief John Harzinkski. If Plaintiff does so he will address initially whether Harzinkski was similarly situated to Plaintiff. d. Any party wishing to file an amended pleading will provide a copy to the other parties and seek a stipulated consent. If such consent is not obtained a motion for leave to amend may be made. e. Item number “5” in Dkt. No. 45 was withdrawn by Plaintiff. f. Attorney Quesnel is to advise the Court in writing of the parties' agreed upon schedule for depositions. 5. Protective Order Defendants seek a protective order barring any party from disclosing (a) deposition transcripts and videos of deposition testimony; and (b) documents and things produced during discovery that are not subject to New York’s Freedom of Information Law (“FOIL”).[1] (Dkt. Nos. 37 and 39.) The order sought would not apply to anything that has been used in court proceedings. Plaintiff opposes the motion. (Dkt. Nos. 42 and 43.[2]) *2 Rule 26(c)(1) of the Federal Rules of Civil Procedure provides, in part, that with respect to discovery “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense ...” Before considering whether Defendants have established “good cause,” the Court will address the existing state of the relevant law. Initially, it is important to note that parties to civil litigation do not have a First Amendment or common law right to disseminate, in advance of trial, information gained through the pretrial discovery process. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 23 and 37 (1984). A claim for openness of discovery materials “is grounded only in the Federal Rules.” Hawley v. Hall, 131 F.R.D. 578, 581 (D. Nev. 1990). The only relevant Rules in this regard are Rule 26(c), which is quoted in part above, and Rule 5(d). In Re Agent Orange Prod. Liab. Litig., 821 F.2d 139, 176 (2d Cir. 1987). Some of the cases cited by Plaintiff in opposition to the protective order were decided prior to a 2000 amendment to Rule 5(d). Flaherty v. Seroussi, 209 F.R.D. 295 (N.D.N.Y. 2001); Hawley v. Hall, supra; Culinary Foods v. Raychem Corp., 151 F.R.D. 297 (N.D. Ill. 1993). Prior to the amendment, Rule 5(d) required the filing of discovery materials unless the court ordered otherwise. The Advisory Committee notes accompanying the pre-2000 amendment indicated the Rule “embodies the Committee’s concern that ... the general public be afforded access to discovery materials whenever possible.” In Re Agent Orange Prod. Liab. Litig., 821 F.2d at 146. Following the Agent Orangedecision some District Courts concluded that there was “a presumption that discovery materials would be publicly available whenever possible.” Westchester Radiological Ass'n v. Blue Cross/Blue Shield, 138 F.R.D. 33, 36 (S.D.N.Y. 1991). See also Mathias v. Jacobs, 197 F.R.D. 29, 47 (S.D.N.Y. 2000). This conclusion, according to the Second Circuit, was incorrect. Securities and Exchange Comm. v. The Street.Com, 273 F.3d 222, 231 n. 9 (2d Cir. 2001). In any event, the landscape was changed by the 2000 amendment, which restricted the filing of discovery materials “until they are used in the proceeding or the court orders filing.” Fed. R. Civ. P. 5(d). The Second Circuit has noted that “to the extent that Agent Orange relied upon Federal Rule of Civil Procedure 5(d) to find a statutory right of access to discovery materials, we observe that the recent amendment to this rule provides no presumption of filing all discovery materials, let alone public access to them.” The Street.Com, 273 F.3d at 233 n.11. Therefore, to the extent that earlier cases relied upon the “now-obsolete version of Rule 5(d) ..., those cases are no longer good law.” Schiller v. City of New York, No. 04 Civ. 7922 KMK JCF, 04 Civ. 7921 KMK JCF, 2007 WL 136149, at *19 n. 12. (S.D.N.Y. Jan. 19, 2007). In short, there is no First Amendment or common law basis for the dissemination of discovery materials, and Rule 5(d) also does not provide any such basis. As a result, the Court’s analysis is limited to Rule 26(c), i.e., whether Defendants have shown “good cause” for the issuance of a protective order. The denial or issuance of a protective order “is singularly within the discretion of the district court and may be reversed only on a clear showing of abuse of discretion.” Dove v. Atl. Capital Corp., 963 F.2d 15, 19 (2d Cir. 1992). “The trial court is in the best position to weigh fairly the competing needs and interests of parties affected by discovery.” Seattle Times Co., 467 U.S. at 36. *3 By its terms, Rule 26(c) provides for protection from, inter alia, “annoyance” and “embarrassment.” Whether this has been established “is an ‘unusually fact-intensive’ inquiry,” and the legal standards to be applied to the inquiry arguably are “muddled.” Condit v. Dunne, 225 F.R.D. 113, 116 (S.D.N.Y. 2004). Nevertheless, this Court will assume that the claimed “annoyance” or “embarrassment” must be substantiated “by specific examples or articulated reasoning” and the resulting harm “must be significant, not a mere trifle.” Schiller, 2007 WL 136149, at * 5. Furthermore, where, as here, the case has a public nature, involving public officials in the performance of their duties, “[t]he mere fact that some level of discomfort, or even embarrassment, may result,” is not enough to support a finding of “good cause.” Flaherty, 209 F.R.D. at 299. Plaintiff’s attorney acknowledges that he provided to the media the deposition transcript of Defendant Handy. He has indicated that “any documents produced [by Defendants in discovery] will be provided to the media.” (Telephone Conference, April 28, 2008.) He presumably will do the same with respect to all deposition transcripts. The Handy deposition transcript contained, inter alia, information concerning disciplinary actions taken against a specifically named non-party and information concerning a specifically named non-party’s alleged sexual affair. (See Dkt. No. 37 at 4.) Plaintiff’s counsel intends to take the depositions of the estranged spouses of Defendants Hughes and Gundersen. It is highly probable, this Court finds, that matters of a personal nature will be disclosed in those depositions. Plaintiff’s counsel also intends to take the deposition of a person whom he has referred to as Defendant Hughes' girlfriend. Her deposition subpoena directs her to produce, inter alia, “any and all electronic mail or other documents relating, in any fashion, to a romantic relationship between [deponent] and [Defendant] Timothy Hughes.” (Dkt. No. 62, Ex. M.) Again, it is highly probable, this Court finds, that matters of a personal nature will be disclosed in this deposition.[3] The Court finds, based upon the foregoing, that the embarrassment and annoyance for the Defendants and non-parties has been substantiated by specific examples, and the resulting harm is significant, and far more than mere discomfort. This alone would constitute “good cause” for the issuance of a protective order. However, here the “good cause” is further substantiated by the following “articulated reasoning.” The Court is influenced by the fact that Plaintiff has alleged that his “good reputation” has been harmed and that he has been “publicly humiliated or defamed,” by the Defendants' conduct. (Dkt. No. 1 at ¶ 73.) He presumably will seek damages for this alleged harm, humiliation and defamation. But Plaintiff’s counsel’s avowed publicity campaign, through dissemination of discovery materials, inevitably will impact, in some fashion, upon Plaintiff’s reputation and the alleged public humiliation and defamation. The Court finds that minimization of this impact is an appropriate factor to be weighed when assessing whether “good cause” has been established. In addition, the Court is influenced by Plaintiff’s counsel’s “colorful comments” (Dkt. No. 42 at 2) to the media.[4] (Dkt. No. 37, Ex. G.) Putting aside whether those comments are contrary to any disciplinary rules or ethical considerations, the Court views them with distaste and finds that they significantly exacerbate, arguably in a misleading fashion, the potential for embarrassment and annoyance.[5] *4 In reaching its conclusions here, the Court has been mindful of the general observations of the Supreme Court and the Second Circuit, albeit in somewhat different legal contexts. The Supreme Court in Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984), reminded us that “[a]s in all civil litigation, petitioners gained the information they wish to disseminate only by virtue of the trial court’s discovery processes.” Id. at 32. The Court further noted: Much of the information that surfaces during pretrial discovery may be unrelated, or only tangentially related, to the underlying cause of action. Therefore, restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information. Id. at 33. Finally, the Court concluded: It is clear from experience that pretrial discovery by depositions and interrogatories has a significant potential for abuse. This abuse is not limited to matters of delay and expense; discovery also may seriously implicate privacy interests of litigants and third parties. The Rules do not distinguish between public and private information. Nor do they apply only to parties to the litigation, as relevant information in the hands of third parties may be subject to discovery. There is an opportunity, therefore, for litigants to obtain - incidentally or purposefully - information that not only is irrelevant but if publicly released could be damaging to reputation and privacy. The government clearly has a substantial interest in preventing this sort of abuse of its processes. The Second Circuit has expressed similar sentiments. “Without an ability to restrict public dissemination of certain discovery materials that are never introduced at trial, litigants would be subject to needless ‘annoyance, embarrassment, oppression or undue burden or expense.’ ” The Street.Com, 273 F.3d at 229. “Protective orders are useful to prevent discovery from being used as a club threatening disclosure of matters which will never be used at trial. Discovery involves the use of compulsory process to facilitate orderly preparation for trial, not to educate or titillate the public.” Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982). Accordingly, it is ORDERED, that the parties and counsel are not to disseminate deposition transcripts, videotapes of depositions, responses to specific discovery demands, including interrogatories, and any documents or things produced, exchanged or secured during discovery that would not be subject to a Freedom of Information Law request; and it is further ORDERED, that with regard to specific documents, materials, transcripts, videotapes and other information, any party may file, under seal and upon notice, an application for leave to disseminate; and it is further ORDERED, that Plaintiff’s request for a protective order regarding the depositions of three officials of the Village of Avon (Dkt. No. 56) is DENIED and Defendants' opposition to that request (Dkt. No. 57) is GRANTED; and it is further ORDERED, that the parties' letter-briefs regarding the need or lack of need for the Court to conduct a conference (Dkt Nos. 59 and 60) are MOOT because the Court conducted a conference on July 29, 2008. Footnotes [1] Defendants also complain about “inappropriate statements made by Plaintiff’s counsel to the media.” (Dkt. No. 37 at 8.) They “request that the protective order embody the limitations that are already placed upon Plaintiff’s counsel by DR 7-107.” Id. at 9. The Court is concerned about Plaintiff’s counsel’s statements to the media, and they are a factor in the Court’s decision on the issuance of a protective Order. See infra at 7-8. The Court declines, however, to add the DR 7-107 limitations to that Order. [2] On July 30, 2008, Defendants' counsel wrote to the Court with respect to the protective order and other issues. (Dkt. No. 62.) On that day Plaintiff’s counsel was engaged in a proceeding in Harrisburg, Pennsylvania, but he filed a brief response. (Dkt. No. 65.) The Court has considered these letters in the context of the protective order issue. With respect to the other issues raised, Plaintiff is given until 10 days from the date of this Order to file a further response, if he wishes to do so. [3] Indeed, this Court is so struck by the potential for embarrassment and annoyance with respect to this deposition and those of the spouses of Defendants Hughes and Gunderson that, if any party requests it, the Court will direct that these depositions be conducted at the Courthouse, under Court supervision. [4] E.g., “[The actions of the mayor and the council were those of] a bunch of petty political ankle-biting fifth graders”; the “blood [of the city residents] is going to boil”; “I'm going to make [sure] someone pays through the nose for this nonsense”; “I can think of no reason, other than desperation, mean spiritedness and cowardice, that would justify [Defendant] Gundersen’s recent actions”; Defendant Handy’s deposition testimony was “pretty embarrassing.” See generally: Dkt. No. 37, Ex. G. In Plaintiff’s Notice of Claim, Defendant City of Gloversville’s government was described as “a cesspool of incompetence, stupidity and petty politics.” (Dkt. No. 37, Ex. G.) [5] In certain respects the Court admires Plaintiff’s counsel’s zeal and tenacity, but wonders whether, in terms of his publicity campaign, this zeal and tenacity is misplaced. As in Flaherty, this Court too questions “the wisdom vel non of plaintiff’s design to air [his] legal claims in the media.” Flaherty v. Seroussi, 209 F.R.D. at 296. Plaintiff’s counsel proudly claims to be “the champion of the people.” But in this litigation he should be only Mr. Margiotta’s champion. The Court, of course, has a limited understanding of the facts at issue and the parties' litigation strategies, but on the surface it is difficult to see how the publicity campaign benefits Mr. Margiotta.