Third-party modification of protective orders under Rule 26(c).

• Author: Kim, Patrick S.
• Position: Federal Rule of Civil Procedure 26(c

Introduction

In early 1983, the Coca-Cola Company was sued by several of its bottling companies for breach of contract in the United States District Court for Delaware.(1)

The bottling companies claimed that, in order to prevail on their claims, they needed to discover several types of information. Among these discovery requests was an order seeking discovery of the secret formula to the ingredient that gives Coca-Cola its distinctive taste: "Merchandise 7X." The Coca-Cola Company so valued the confidentiality of the secret formula that only two employees in the entire corporation actually knew the formula, and they were prohibited from traveling on the same airline flights together.(2) Only one written copy of the formula existed, kept in a security vault at the Trust Company Bank in Atlanta, Georgia which could be opened only upon a resolution from the Company's Board of Directors.(3) Coca-Cola eventually settled the suit rather than risk potential disclosure of the formula, even though the discovery would have been placed under seal.

In modern complex litigation, the scope of discovery is broad and may yield thousands of documents, many of which can contain sensitive or private information. To protect the interests of litigants who must produce discovered materials of a confidential nature, Rule 26(c) of the Federal Rules of Civil Procedure allows courts to issue protective orders that prohibit the parties from divulging information gained through discovery.(4) Parties commonly request

(1.) 411 U.S. 792 (1973). (2.) 42 U.S.C. [sections] 2000e (1988). (3.) Title VII recognizes race, ethnic, gender, religious, and national origin distinctions. See 42 U.S.C. [sections] 2000e (1988). (4.) See McDonnell Douglas, 411 U.S. at 802. (5.) See 411 U.S. at 802. (6.) See 411 U.S. at 804. (7.) See 411 U.S. at 792. (8.) See, e.g., Blackwell v. Sun Elec. Corp., 696 F.2d 1176, 1180-81 (6th Cir. 1983). (9.) 29 U.S.C. [subsections] 621-34 (1994). (10.) See, eg., Holley v. Sanyo Mfg., 771 F.2d 1161, 1164 (8th Cir. 1985); Loeb v. Textron, 600 F.2d 1003, 1015-16 (1st Cir. 1979). (11.) The vast majority of RIF cases are brought under the ADEA. The arguments presented in this Note, however, apply equally as well to RIF cases brought under Title VII. (12.) In some RIF employment discrimination cases, the courts focus their inquiry on whether a RIF actually occurred or whether the employer has claimed falsely a RIF in order to conceal age discrimination. See, eg., Hardin v. Hussman Corp., 45 F.3d 262, 265 (8th Cir. 1995) (concluding that a RIF did in fact occur); Oxman v. WLS-TV, 846 F.2d 448, 456 (7th Cir. 1988) (treating the employer's structural reorganization as a legitimate, nondiscriminatory reason for the plaintiff's termination). The scope of this Note, however, is limited to cases where the parties do not dispute the RIF itself but dispute why, given the RIF, the employer discharged the plaintiff rather than a younger employee. In this context, courts should not consider the RIF the employer's proffered reason, as some courts have done, but should require employers to explain why it chose to discharge the plaintiff. Compare Barnes v. Gencorp, Inc., 896 F.2d 1457, 1464 (6th Cir. , cert. denied, 498 U.S. 878 (1990) (stating that the most common proffered reason for the discharge is the RIF) with Thombrough v. Columbus & Greenville R.R., 760 F.2d 633, 645 (5th Cir. 1985) "The question is why, given the employer's need to reduce his workforce, he chose to discharge the older rather than the younger employee."). (13.) See Robert G. Boehmer, The Age Discrimination in Employment Act -- Reductions in Force as America Grays, 28 Am. Bus. L.J. 379, 383 (1990). There are two distinct scenarios under which a RIF case arises, although both follow a restructuring of the workforce. Under the first scenario, the employer eliminates the plaintiff's job position. Under the second scenario, the employer eliminates a job position other than the plaintiff's position. Rather than lay off the displaced worker who formerly held the eliminated position, however, the employer instead lays off the plaintiff, replacing her with the displaced employee. In other words, the displaced employee "bumps" the plaintiff. This Note focuses on the former scenario, which has proven problematic for the courts at the prima facie stage. Courts properly may evaluate the latter scenario under the McDonnell Douglas framework as applied to the firing context. Hereinafter, I use the term "RIF cases" to refer only to those cases where the employer eliminated the plaintiff's position. (14.) See, e.g, Healy v. New York Life Ins. Co., 860 F.2d 1209 (3d Cir. 1988), cert. denied, 490 U.S. 1098 (1989); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir.), cert. dismissed, 483 U.S. 1052 (1987); Coburn v. Pan Am. World Airways, Inc., 711 F.2d 339 (D.C. Cir.), cert. denied, 464 U.S. 994 (1983); Massarsky v. General Motors Corp., 706 F.2d 111 (3d Cir. 1982), cert. denied, 464 U.S. 937 (1983). (15.) See, eg., Williams v. General Motors Corp., 656 F.2d 120, 129 (5th Cir. 1981), cert. denied, 455 U.S. 943 (1982); see also Earley v. Champion Intl. Corp., 907 F.2d 1077 (11th Cir. 1990); Barnes, 896 F.2d at 1457; Thornbrough 760 F.2d at 633; Selby v. Pepsico, 784 F. Supp. 750 (N.D. Cal. 1991), affd., 994 F.2d 703 (9th Cir. 1993). (16.) Section 715 of Title VII called on the Secretary of Labor to conduct a study of age discrimination. The Secretary's 1965 report concluded that age discrimination in the workplace was a serious problem that required congressional action. Congress agreed, and the ADEA became effective on June 12,1968. Secretary of Labor, Next Steps in Combating Age Discrimination in Employment, 95TH Cong., 1st Sess. (Comm. Print 1977). (17.) See Holley v. Sanyo Mfg., 771 F.2d 1161, 1164 (8th Cir. 1985); Loeb v. Textron, 600 F.2d 1003, 1015-16 (1st Cir. 1979).

Plaintiffs can prove employment discrimination under two distinct legal theories -- "disparate treatment" or "disparate impact." A plaintiff who brings her claim under the disparate treatment theory must demonstrate that her employer intentionally treated her less favorably than others because of her race, gender, religion, national origin, or age. See International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977). The disparate impact theory addresses employment practices that are facially neutral but allegedly affect members of a protected class more harshly than those outside the protected class. In this context, plaintiffs also must show that the employment practice cannot be justified by business necessity. The disparate impact theory does not require proof of discriminatory motive. See 431 U.S. at 335 n.15; see also Massarsky, 706 F.2d at 117. Although ADEA cases can be brought under either one of these two theories, this Note focuses only on disparate treatment claims in the context of RIF cases.

Some courts have held that the ADEA does not recognize disparate impact claims. Compare DiBiase v. Smith Line Beecham Corp., 48 F.3d 719 (3d Cir. 1995) (doubting whether the disparate impact theory is available under the ADEA in light of the Supreme Court's holding in Hazen Paper Co. v. Biggins, 113 S. Ct. 1701 (1993)) with Houghton v. Sipco, Inc., 38 F.3d 953, 958-59 (8th Cir. 1994) (assuming that disparate impact liability applies under the ADEA) and Geller v. Markham, 635 F.2d 1027,1032 (2d Cir. 1980) (same). For commentators favoring extension of disparate impact liability to cases brought under the ADEA, see Steven J. Kaminshine, The Cost of Older Workers, Disparate Impact, and the Age Discrimination in Employment Act, 42 Fla. L. Rev. 229 (1990); Peter H. Harris, Note, Age Discrimination, Wages, and Economics: What Judicial Standard?, 13 Harv. J.L. & Pub. Poly. 715 (1990); Maria Ziegler, Comment, Disparate Impact Analysis and the Age Discrimination in Employment Act, 68 Minn. L. Rev. 1038 (1984). For commentators opposed to the extension of disparate impact liability to cases brought under the ADEA, see Donald R. Stacy, A Case Against Extending the Adverse Impact Doctrine to ADEA, 10 Employee Rel. L.J. 437 (1985); Pamela S. Krop, Note, Age Discrimination and the Disparate Impact Doctrine, 34 Stan. L. Rev. 837 (1982). See generally Michael C. Sloan, Comment, Disparate Impact in the Age Discrimination Employment Act. Will the Supreme Court Permit It?, 1995 Wis. L. REV. 507 (concluding that the Court is unlikely to extend disparate impact liability to cases brought under the ADEA). (18.) 411 U.S. 792 (1973). (19.) See United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714 n.3 (1983). "Direct evidence" refers to evidence which, if believed, resolves a matter in issue. In other words, if a factfinder finds the direct evidence trustworthy, the evidence proves the existence of a fact without any inference or presumption. For example, in an age discrimination case where 59-year-old Monica loses her job, a statement by Monica's boss to the effect "we should fire Monica because she is too old for this type of work" would prove discriminatory animus if believed. In contrast, circumstantial evidence, even if believed, requires additional reasoning before the factfinder can believe the proposition for which the evidence is offered. The truthfulness of circumstantial evidence tends to suggest the existence of some fact, but it does not prove the fact conclusively. To believe the fact for which the circumstantial evidence is offered, the factfinder must make a leap in logic, such as an inference or presumption. In our age discrimination example, testimony from other older co-workers of Monica that they, too, felt discriminated against lends credence to Monica's claim if believed, but the fact that Monica's employer discriminated against Monica's co-workers does not conclusively prove that the employer discriminated against Monica. See generally McCormick on Evidence...