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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
TOGETHER EMPLOYEES, by
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individual representatives,
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ROBERTA LANCIONE
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JOYCE MILLER, MARIA DIFRONZO,
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MICHAEL SACCOCCIO,
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ELIZABETH BIGGER,
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NATASHA DICICCO,
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NICHOLAS ARNO and
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CIVIL ACTION NO.
RUBEN ALMEIDA,
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1:21-cv-11686-FDS
Plaintiffs
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v.
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MASS GENERAL BRIGHAM
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INCORPORATED
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Defendant
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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR
PROTECTIVE ORDER
I.
INTRODUCTION
This Court made clear to point out that “statements by counsel are not part of
the evidentiary record” in its Memorandum and Order denying plaintiffs’ Motion for
Preliminary Injunction. (Mem. and Order, ECF 45, p. 19). This principle applies to
the defendant as well, yet the defendant is asking this Court handicap the plaintiffs’
ability to conduct crucial discovery without providing this Court any evidence as to
the necessity of a protective order. Defendant suggests, without a shred of evidence
that harassment “could follow” if the identities of crucial witnesses were to be
provided to the plaintiffs. (Def. Mem., ECF 49, p. 4). It also states, again without a
shred of evidence, that these defense witnesses have already been “impacted” by the
“tide of threats and harassment.” (Def. Mem., ECF 49 at p. 3). To establish the
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accusation that plaintiffs have already “harassed” defense witnesses, defendant
relies on Ramona Nichols’ affidavit stating that employees whose religious
exemptions were denied emailed the committee and “express[ed] their displeasure
with the denials” and that “some of these interactions were very tense.” (Def. Mem.,
ECF 49, p. 4, quoting Nichols Aff. ¶). The very nature of litigation is an adversarial
process. It is doubtful that many employees were happy to learn that their religious
accommodations were denied. Defendant is comparing “tense conversations” to
“analogies to Nazism, and reference to use of assault weapons.” (Def. Mem., ECF 49,
p. 3).
The defendant is thus effectively asking this Court to adopt a rule in which
incredibly restrictive protective orders should be granted if there exists tension
between the parties over their positions. There is no supporting authority for what
defendant is requesting this Court.
II.
DEFENDANT HAS NOT MET ITS BURDEN OF DEMONSTRATING THE
EXISTENCE OF GOOD CAUSE FOR A PROTECTIVE ORDER.
Fed. R. Civ. P. 26(b)(1) provides that, “[u]nless otherwise limited by court
order, the scope of discovery is as follows: Parties may obtain discovery regarding
any nonprivileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case… Information within this scope of discovery
need not be admissible in evidence to be discoverable.”
It is the defendant’s burden to demonstrate that good cause exists. “The party
or person seeking a protective order, including an order limiting another party's
right to disseminate information obtained in discovery, has the burden of
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demonstrating the existence of good cause.” Green v. Cosby, No. 14-cv-30211-MGM,
2015 WL 9594287, at *4-5 (D. Mass. Dec. 31, 2015); Baker v. Liggett Grp., Inc., 132
F.R.D. 123, 125 (D. Mass. 1990) (citing Anderson v. Cryovac, Inc., 805 F.2d 1, 6-7
(1st Cir. 1986)). “A finding of good cause must be based on a particular factual
demonstration of potential harm, not on conclusory statements.” Baker, 132
F.R.D. at 125 (quoting Anderson, 805 F.2d at 7). Emphasis added.
A case directly on point to ours, Theidon v. Harvard University, 314 F.R.D.
333, 336 (D. Mass. Feb. 4, 2016), reviewed a Title VII discrimination and retaliation
claim wherein the plaintiff sought the names of Harvard’s committee members and
individuals involved in the process of reviewing her tenure application, along with
those whose work was used to compare hers in the committee’s determination.
Harvard sought redaction of the outside reviewers’ information, redaction of the
names of the scholars to whom plaintiff was compared and and attorney’s eyes only
(“AEO”) designation regarding the identity of the ad hoc committee convened to
consider the plaintiff’s tenure, which consisted of ten individuals, including three
from other universities. In other words, an almost identical, only less drastic request
than the defendant is requesting in our current case.
The Court denied all three requests. In fact, the Court stated that Harvard
“makes a strong argument” for confidentiality, however balanced against the
plaintiff’s “need to access evidence supporting her allegations of
discrimination and retaliation,” including, among many others “as with any
witness, Theidon seeks to identify any biases among those who evaluated her.” Id.
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The Court rightly found that “shielding identifying information about the letter
writers, both external and internal, through the discovery process handicaps
Theidon’s ability to marshall facts that support her claims and raise issues
necessitating a trial, important components of both summary judgment and trial.”
Id, citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986) (requiring non-moving party to “set forth specific facts showing
that there is a genuine issue for trial”).
The Court found that the information would be “essential to Theidon’s
effort to acquire probative evidence” and that “[t]hwarting Theidon’s case
through discovery and summary judgment by denying her access to
evidence possessed by her adversary is tantamount to thwarting her case at
trial.” Id. (Emphasis added).
Defendant further asserts that “[p]laintiffs have not articulated any likely
benefit of requiring such disclosure, let alone a benefit that outweighs the heavy
burden.” (Def. Mem., ECF 49, p. 9). First, Rule 26(b)(1) entitles the plaintiffs to
relevant evidence, without the requirement of an “articulation” as to its benefit to
defendant. Second, this is incorrect. With respect to the relevance of the evidence, it
is absurd to suggest that provision of the identities of and the ability to examine the
very people who made the determination to deny religious accommodations for what
the defendant itself has suggested in its opposition to plaintiffs’ Motion for
Preliminary Injunction, is a very fact intensive process. (Def. Mem., ECF 7, p. 17 at
n. 7: “[c]laims asserted by unnamed plaintiffs would require personal participation
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by, and unique evidence from, each plaintiff because each has a unique alleged
religious belief or disability and each employee’s interactive process with MGB was
unique.”). These individuals who made the determination to deny religious
accommodations for the plaintiffs have their own biases, interests, motives and
beliefs just like anyone else. Examining their credentials, work history and those
aforementioned beliefs, motives, etc. is crucial to preparing plaintiffs’ case1. Third, it
bears repeating that defendants have the burden of showing that good cause exists.
“A finding of good cause must be based on a particular factual
demonstration of potential harm, not on conclusory statements.” Anderson,
supra., quoting 8 C. Wright & A. Miller, Federal Practice and Procedure § 2035, at
264–65 (1970); see also General Dynamics Corp. v. Selb Manufacturing Co., 481 F.2d
1204, 1212 (8th Cir.1973) (burden on movant to make specific demonstration of
necessity for protective order), cert. denied, 414 U.S. 1162, 94 S.Ct. 926, 39 L.Ed.2d
116 (1974); Koster v. Chase Manhattan Bank, 93 F.R.D. 471, 479–80 (S.D.N.Y.1982)
(“the court must find that definite criteria have been satisfied before issuing a
protective order”); cf. Schlagenhauf v. Holder, 379 U.S. 104, 118–19, 86 S.Ct. 234,
242–43, 13 L.Ed.2d 152 (1964) (good cause under Fed.R.Civ.P. 35 must be based on
more than “conclusory allegations”).
Defendant’s Motion for Protective Order should be denied, as all that it has offered
only suggestions as to what it believes is the general tenor of the national
1 This also applies to those whose accommodations were provided. Information such as the religious
belief and/or medical accommodation that was accepted, the employee’s role, status, connection to
management and other factors are crucial to preparing our case.
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conversation on the COVID vaccines and subsequent policies. Its Memorandum is
completely void of anything that would suggest that plaintiffs would commit the sort
of acts that defendant has presented to the Court. A protective order cannot be
awarded to a party simply upon a showing that somewhere in the country an
individual committed a crime based on a somewhat related topic. Anthony Fauci is
not a party to this case, nor does he have any involvement in it. Gretchen Whitmer is
not a party to this case, nor does she have any involvement in it. Also, the plaintiffs
aren’t even challenging the policy, which seems to be something that the defendant
refuses to accept. They are, however, challenging the religious discrimination
committed by the defendant and its agents, whom defendant wishes to keep a secret.
In other words, the examples provided by defendant do not even apply, as this is a
religious discrimination case and not a vaccine case. Further, defendant did not bring
up why it would be a burden for those who actually made the determinations
regarding plaintiffs’ accommodations to be identified and examined, but not Dr.
Klompas, Ramona Nichols and Dr. Hashimoto, whose names are published currently
and who also work for defendant.
III.
DEFENDANT HAS CITED NO AUTHORITY THAT WOULD ALLOW A
PROTECTIVE ORDER UNDER THESE CIRCUMSTANCES.
Defendant’s attempt at requesting the most extreme limitation in hopes that
this Court will consider an AEO designation to be some form of middle ground
has no basis in law. Nearly every case cited within its Memorandum has no
application to the facts at hand.
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First, not a single case cited by defendant issued a protective order that
concealed identities from parties other than for trade secrets. According to
defendant’s own authority:
1. Doe v. Stegall, 653 F.2d 180 (5th Cir. 1981), the plaintiffs brought specific
exhibits which contained actual threats of violence and retaliation.
Further “[t]hey agreed to disclose their identities to the defendants and to
the Court,” followed by a footnote stating, “[t]he plaintiffs urge that this
procedure gives both the court and the defendants every opportunity to
scrutinize their standing to sue and to proceed with any necessary
discovery.”
2. Doe v. City of Chicago, 360 F.3d 667 (7th Cir. 2004), the court stated that
“there is no indication of any basis for [plaintiff] proceeding
[anonymously]. She merely filed the complaint anonymously, there was no
objection, and the judge conducted no inquiry into the propriety of
anonymity.”
3. June Med. Servs., LLC v. Caldwell, No. 3:14-CV-00525-JWD (M.D. La.
Aug. 28, 2014), the plaintiffs demonstrated direct threat of physical
violence at their workplaces and showed instances of abortion providers
being killed. The court stated in its Order, “[t]he Court agrees that the
circumstances of this case do not support withholding the names
of the John Doe Doctors from the Court or the named defendants.”
Id. at ECF 24, p. 4. In other words, even under real threat of death, the
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Court allowed the parties to know the identities of those under
pseudonym.
4. Does 1-6 v. Mills, No. 1:21-CV-00242-JDL, 2021 WL 4005985, at *2 (D.
Me. Sept. 2, 2021). Defendants use this case as authority to support their
assertion that a protective order should be allowed, then distinguish this
authority claiming that it should not be applied here, because the Court
allowed the parties to know the identities of those under pseudonym.
5. U.S. v. Bulger, 283 F.R.D. 46 (D. Mass. 2012), the Court only prevented
the public and media from accessing the discovery under protective order.
Parties to the litigation were not prevented from seeing it.
6. Doe v. Porter, 370 F.3d 558 (6th Cir. 2004), the Court allowed the
government defendant access to the identifying information, protecting
the identity of the plaintiffs from the public, due in part to a specific
threat of harassment toward the actual plaintiffs in the lawsuit in a local
newspaper.
Not a single case cited by defendant in its Memorandum provides any
authority for this Court to do what defendant proposes that it do. Even the AEO
cases deal specifically with trade secrets. Thus, the Court should not consider even
AEO on this matter, as “[a]ttorneys’ eyes only disclosure is appropriate only in
limited circumstances, such as cases involving trade secrets, because it hinders
the plaintiff’s ability to aid counsel in review of the evidence and to
determine her litigation strategy in light of it.” Ragland v. Blue Cross Blue
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Shield of N.D., No. 1:12–cv–080, 2013 WL 3776495, at * 1 (D.N.D. June 25, 2013);
see also Sexual Minorities of Uganda v. Lively, No. 3:12–30051–MAP, 2015 WL
4750931, at * 5 (D.Mass. Aug. 10, 2015) (citing defendant's right to participate in
his defense in denying attorneys' eyes-only designation, calling it a “drastic
remedy given its impact on the party entitled to the information.” emphasis
added).
IV.
CONCLUSION
Defendant’s conclusory statements and internet articles do not amount to a
“particularized and compelling need for confidentiality” in this particular case. Id.
Plaintiffs wholeheartedly oppose any measure that would prevent them from
obtaining necessary and crucial information in discovery.
Plaintiffs therefore request that this Court DENY defendant’s motion.
/s/ Ryan P. McLane
Ryan P. McLane
Lauren Bradford
McLane & McLane, LLC
BBO # 697464
269 South Westfield Street
Feeding Hills, MA 01030
(413) 789-7771
ryan@mclanelaw.com
lauren@mclanelaw.com
CERTIFICATE OF SERVICE
I do hereby certify that a true copy of the above document was served upon
the parties and/or attorneys of record by electronic mail on December 13, 2021.
/s/ Ryan P. McLane
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