Miller v. Institute For Defense Analyses

          ORDER

          Nina Y. Wang, United States Magistrate Judge.

         Pending before this court is the Opposed Motion for Protective Order (“Motion”) filed by Defendant Institute for Defense Analyses (“Defendant” or “IDA”) [#27, filed April 4, 2018], which is opposed by Plaintiff Drew Miller (“Plaintiff” or “Dr. Miller”). IDA urges this court to enter a blanket Protective Order, under which it can designate discovery materials as “Confidential, ” and Dr. Miller is permitted to challenge such designations. [#27-1]. The court held a Status Conference with respect this issue on April 13, 2018, and requested briefing on the issue. [#30]. Dr. Miller filed an Opposition [#31] and IDA filed a Reply [#32]. Upon review of the record before it, this court finds that oral argument will not materially assist in the resolution of the Motion. Having been fully advised of the premises, this court hereby GRANTS IN PART and DENIES IN PART the Motion.

         BACKGROUND

         The court has described the background of this case in prior Orders, see [#34], and, therefore, it will limit its discussion herein to only the facts most relevant to the pending Motion. On October 6, 2017, Dr. Miller initiated this action asserting several federal claims against IDA for: retaliation under the False Claims Act, 31 U.S.C. § 3730(h)(1) (“Claim I”), “Defense Contractor Whistleblower Retaliation” under 10 U.S.C. § 2409 (“Claim II”), and non-payment of earned wages under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 206, 207 (“Claim III”); he also asserts state law claims for: wrongful discharge in violation of public policy (“Claim IV”), termination for lawful off-duty activity under Colo. Rev. Stat. § 24-34-402.5 (“Claim V”), and unlawful prevention of an employee's political participation under Colo. Rev. Stat. § 8-2-108 (“Claim VI”). See [id.]. On January 30, 2018, Defendant filed its Answer to Claims I, II, IV-VI, and moved to dismiss Claim III. See [#15; #16]. By Order dated May 29, 2018, this court granted the Motion for Partial Dismissal, dismissing Plaintiff's FLSA claim but permitting Plaintiff to file a Motion to Amend his Complaint. [#34]. By letter docketed June 14, 2018, Plaintiff declined to seek amendment of Claim III. [#35]. Accordingly, two federal claims and two state law claims relating to Dr. Miller's termination from IDA remain.

         The court entered a Scheduling Order on February 7, 2018. [#20]. During a Status Conference held before the court on April 13, 2018, Defendant indicated its intent to seek a Protective Order, and Dr. Miller objected to any Protective Order. [#30]. The court ordered briefing, which followed.

         LEGAL STANDARDS

         Rule 26(c) of the Federal Rules of Civil Procedure provides that a court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. Fed.R.Civ.P. 26(c). The party seeking a protective order bears the burden of establishing its necessity, Centurion Indus., Inc. v. Warren Steurer & Assoc., 665 F.2d 323, 325 (10th Cir. 1981), but the entry of a protective order is left to the sound discretion of the court, see Rohrbough v. Harris, 549 F.3d 1313, 1321 (10th Cir. 2008). As part of the exercise of its discretion, the court may also specify the terms for disclosure. Fed.R.Civ.P. 26(C)(1)(B). The good cause standard is highly flexible, having been designed to accommodate all relevant interests as they arise. See Rohrbough, 549 F.3d at 1321.

         There are at least three kinds of protective orders that courts have utilized to limit discovery or the dissemination of information: (1) particular protective orders; (2) blanket protective orders; or (3) umbrella protective orders. See Gillard v. Boulder Valley School Dist. RE-2, 196 F.R.D. 382, 385-86 (D. Colo. 2000). At one end of the spectrum are particular protective orders that are directed at specific, identified information. Id. At the other end of the spectrum umbrella protective orders designate all discovery as protected, without any prior review by the court or the parties. Id. Blanket protective orders lie in the middle and place the burden upon the parties to review and designate documents as protected. Id. A receiving party can object to the designation, and to the extent that the parties cannot resolve such objection, they may seek judicial intervention. Id.

         Because Dr. Miller is proceeding pro se, this court liberally construes his filings, but it cannot act as his advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). While the court will not construct arguments or theories for the plaintiff in the absence of any discussion of those issues, Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991), to the extent that Dr. Miller has articulated an appropriate argument even in non-legal terminology, this court considers it herein.

         ANALYSIS

         In this case, IDA seeks a blanket protective under which it can designate discovery, while Dr. Miller objects to any protective order on multiple grounds: (1) IDA is quasi-governmental and, accordingly, should not be considered a private corporation; (2) Dr. Miller is proceeding pro se, and he would like to share the discovery with nonparties, including organizations dedicated to assisting whistleblowers; and (3) as a pro se litigant, he does not have the experience or bandwidth to seek relief from the court each time he seeks to share a document.

         I. IDA's Status

         In his Complaint, and admitted by Defendant, IDA is a Federally Funded Research and Development Center (“FFRDC”), a public-private partnership that conducts research for the U.S. government. In that capacity, it performs work pursuant to numerous contracts with the Department of Defense. [#1 at ¶ 24, #15 at ¶ 24]. FFRDCs are authorized by 41 U.S.C. § 405(a), 48 C.F.R. § 35.017, and Federal Acquisition Regulation (“FAR”) § 35.017. Vallier v. Jet Propulsion Lab., 120 F.Supp.2d 887, 891-92 (C.D. Cal. 2000). FAR § 35.017(a)(2) defines the role of an FFRDC as follows: “FFRDC's enable agencies to use private sector resources to accomplish tasks that are integral to the mission and operation of the sponsoring agency.” Id.

         In some instances, courts have undertaken a factual analysis to determine whether a FFRDC is standing in the shoes of a governmental agency. See United States v. Jianyu Huang, No. CR 12-1246 WJ, 2014 WL 12796741, at *2 (D.N.M. Mar. 6, 2014). The fact that IDA is a FFRDC, however, does not necessarily transform it into a federal government agency or its employees into federal employees. Id. In unrelated contexts, courts have described IDA as “a private, nonprofit organization engaged in analyzing high level management problems, primarily for the Department of Defense, ” Smith v. Flax, 618 F.2d 1062, 1063 (4th Cir. 1980), and a “nongovernmental agency, ” In re Agent Orange Prod. Liab. Litig., 98 F.R.D. 522, 531 (E.D.N.Y. 1983). This court found no case law addressing whether, for the purposes of discovery in civil litigation, FFRDCs in general, or IDA specifically, is considered a federal agency. But even if IDA was considered a federal agency or an arm of the Department of Defense (which are not conclusions that this court is willing or permitted to make on the record before it), not all information provided to or held by a federal agency is publicly available. See, e.g., 5 U.S.C. § 552b (setting forth certain exemptions to the Freedom of Information Act (“FOIA”)). Indeed, courts have entered blanket protective orders to facilitate production of documents ...