United States District Court, D. Colorado
Y. Wang, United States Magistrate Judge.
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.
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.
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.
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.
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.
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
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
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.
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