The opinion of the court was delivered by: Magistrate Judge Bissoon
For the reasons that follow, Plaintiffs' Motion to Compel (Doc. 71) is GRANTED to the extent described below; Defendants' Renewed Motion for Clarification and for a Protective Order (Doc. 75) is DENIED; and counsel will be ordered to appear before the undersigned for a telephone conference.
The parties' Motions stem from Defendants' concern that Plaintiffs or their counsel will use information, which Defendants were ordered to produce by August 6, 2009, for purposes other than providing Court-approved notice to putative collective action members. See generally Defs.' Mot. at 1. Plaintiffs, citing potential infringements on their First Amendment rights, have declined to so stipulate, instead offering their counsel's generic assurances that "they [will] not use the list in any way that would violate the Court's Order or any ethical obligations."
See Aff. of Pls.' Counsel (Doc. 73) at ¶ 12. As a consequence, Defendants have refused to produce accessible information regarding putative collective action members, pending resolution of their Motion. See Defs.' Mot. at ¶ 21 ("Defense counsel has sent an encrypted and password protected disk . . . to [P]laintiffs' counsel on August 6, 2009, and [D]efense counsel will promptly provide required passwords upon the Court's order").
Precisely what Plaintiffs' counsel intend to do with the information remains unclear. The Court has entered a Protective Order restricting the use of telephone numbers to "the . . . running [of] reverse directory checks for putative members with outdated addresses, . . . not to make calls to prospective class members." See Order dated Jul. 7, 2009 (Doc. 63) at 10 n.7. Plaintiffs have not sought reconsideration of this ruling, and their counsel's current affidavit represents that they will not violate the July 7th Order. Furthermore, Defendants have agreed that Plaintiffs' counsel may use phone numbers "to return calls to putative [p]laintiffs," as opposed to initiating contact with them. Defs.' Mot. at ¶ 9.
As for written communications, the Court already has employed mechanisms allowing for the judicial approval of a neutral notice form, a process through which the parties will enjoy a full opportunity to be heard. See July 7th Order (setting deadline of August 21, 2009, for submission of "a stipulated notice form for judicial approval," or "[the] cross-fil[ing of] proposed notice forms, and memoranda of law not exceeding ten pages, in support of [the] competing proposals").
Although it remains unclear why Plaintiffs are disinclined to stipulate that Defendants' information will not be used outside the context of Court-supervised notification, it is clear that Defendants thus far have failed to demonstrate entitlement to a blanket protective order.
[When] . . . contemplating prohibitions on communications between the parties and potential [collective action] members, [the Court must] weigh the need for a limitation on communication and the potential interference with the rights of the parties. . . .
[T]he weighing process should result in a carefully drawn order that limits speech as little as possible, consistent with the rights of the parties under the circumstances. . . .
Colozzi v. St. Joseph's Hosp. Health Ctr., 2009 WL 2045315, *3 (N.D.N.Y. May 27, 2009) (citations and internal quotations omitted).
To justify the entry of a protective order, Defendants must show: (1) that a particular form of communication has occurred or is threatened to occur; and (2) that the particular form of communication is abusive and threatens the proper functioning of the litigation. Ojeda-Sanchez v. Bland Farms, 600 F. Supp.2d 1373, 1378 (S.D. Ga. Mar. 4, 2009) (citation omitted).*fn1
Although actual harm need not be proven, the Court must find "a likelihood of serious abuses." Id. (citation to quoted source omitted). This determination must be "based on a clear record and specific findings that reflect a weighing of the need for a limitation." Id. (citation to quoted source omitted, emphasis added).
A "clear record" has not been developed in this case, and Defendants' current protestations do not suffice. See Frye, 2008 WL 2117264 at *4 ("the mere possibility of abuse" is insufficient) (citation omitted); see also, e.g., Colozzi at *3 (reversing magistrate judge's entry of "highly circumscribed" communications order, and remanding for "appropriate proceedings so that a carefully drawn order can be entered that limits speech as little as possible, consistent with the rights of the parties under the circumstances") (citation to quoted source omitted).
For these reasons, Defendants' request for a protective order is unsubstantiated. So too is their refusal to provide information, ordered for production by August 6, 2009, and they shall immediately ...