The opinion of the court was delivered by: Judge Nora Barry Fischer
Pending before the Court is a Motion to Include a Sharing Provision in the Court's Confidentiality Order filed by Plaintiffs, Cheryl A. Harris and Douglas Maseth, executrix and executor of the Estate of Ryan Maseth, respectively, (hereinafter "Plaintiffs") on November 19, 2008. (Docket No. 83). Plaintiffs seek the addition of a provision to the proposed Confidentiality and Protective Order which would permit them to disclose confidential information discovered in this litigation with similarly situated plaintiffs, federal officers, military personnel, or other governmental officials contingent upon an agreement by these individuals to be bound by the terms and conditions of the Confidentiality and Protective Order. (Id.). Defendant Kellogg, Brown and Root Services, Inc. (hereinafter "Defendant") generally objects to the inclusion of such a provision in the Order except that it has proposed a more limited sharing provision permitting the disclosure of confidential information to litigation counsel for the Army. (Docket No. 86).
As noted in the Court's previous Memorandum Order, the parties have engaged in negotiations regarding the terms and conditions of a proposed Confidentiality and Protective Order to govern the discovery of confidential materials in this action since its inception. (Docket No. 79 at 1-2). The parties reached an impasse regarding several provisions and Defendant sought intervention from the Court by way of a motion for a protective order. (Id.). Upon consideration of the parties' respective positions, the Court granted in part and denied in part Defendant's Motion for a Protective Order, granting the inclusion of Defendant's proposed paragraphs 7, 8, 12, and 15 except as modified by the Court's appointment of a Special Discovery Master, and denying Defendant's proposed paragraph 5. (Id. at 14-15).
Pursuant to that Memorandum Order, the Court convened a status conference on November 12, 2008 to discuss the appointment of said Special Discovery Master and to finalize the Confidentiality and Protective Order. (Docket No. 82). At that time, Plaintiffs' counsel requested the addition of a sharing provision to the Confidentiality and Protective Order. (Id.). The Court ordered the parties to meet and confer to negotiate the terms and conditions of such provision to be included in the Order and scheduled another conference call on November 14, 2008. (Id.). During that conference call, the Court was informed that the parties again could not reach agreement on proposed language. (Docket No. 82). The Court then ordered Plaintiffs to file a written motion and issued a briefing schedule. (Id.).
The pending motion was filed by Plaintiffs on November 19, 2008, (Docket Nos. 83 and 84), and Defendant filed its response on November 26, 2008. (Docket No. 86). The Court heard oral argument on the motion on December 1, 2008. (Docket No. 87). During argument, Plaintiffs requested an opportunity to file a reply or supplemental evidence in support of their motion, which was granted by the Court. (Id.). Plaintiffs filed their supplement on December 2, 2008. (Docket No. 88). In turn, Defendant filed its Sur-Reply Brief in Opposition. (Docket No. 89). As the briefing is complete, the motion is now ripe for disposition.
1. Plaintiffs' Proposed Additions to the Confidentiality and Protective Order As presently constituted, paragraph 2 of the Confidentiality and Protective Order governs the disclosure of confidential information,*fn1 specifically designating classes of persons to whom such information may be disclosed. In general, the Order permits disclosure of confidential information to the following: named parties in this action; their counsel, experts, consultants and staff; witnesses; court personnel;non-parties who are required to receive such information by statute, court order, subpoena or other legal process; and others as more fully stated in said paragraph. The full text of paragraph 2 provides:
2. Except as otherwise provided herein or by further order of the Court, Confidential Information may, subject to the conditions set forth herein, be disclosed, summarized, described, characterized or otherwise communicated or made available, in whole or in part, only to the following persons:
a. Any named party in this action, including its present or former directors, officers, employees, outside or in-house auditors, and insurers;
b. Any other person or entity to whom/which any party is statutorily obligated to produce Confidential Information;
c. Counsel for any party in this action and attorneys, paralegals, and secretarial, clerical, and other support personnel employed by such counsel's firm when operating under such counsel's supervision and control;
d. Judges and court personnel of the United States District Court for the Western District of Pennsylvania; the jury in this action; certified court reporters acting as such; and to the extent necessary to prosecute any appeals of this action, the judges and court personnel of the federal appellate courts in which the Western District sits;
e. Such persons as are engaged by a party or counsel to act as testifying or consulting experts;
f. Witnesses (including their attorneys) during the course of or, to the extent necessary, in preparation for, depositions or testimony in this Litigation;
g. Non-Parties to whom Confidential Information must be produced subject to a subpoena, court order, or other legal process in ...