Free Reply to Response to Motion - District Court of California - California

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GORDON P. ERSPAMER (CA SBN 83364) [email protected] MORRISON & FOERSTER LLP 101 Ygnacio Valley Road, Suite 450 P.O. Box 8130 Walnut Creek, California 94596-8130 Telephone: 925.295.3300 Facsimile: 925.946.9912 SIDNEY M. WOLINSKY (CA SBN 33716) [email protected] JENNIFER WEISER BEZOZA (CA SBN 247548) [email protected] KATRINA KASEY CORBIT (CA SBN 237931) [email protected] DISABILITY RIGHTS ADVOCATES 2001 Center Street, Third Floor Berkeley, California 94704-1204 Telephone: 510.665.8644 Facsimile: 510.665.8511 [see next page for additional counsel for Plaintiffs]

12 13 14 15 16 17 18 19 20 Plaintiffs, 21 v. 22 23 24 25 26 27 28
PLAINTIFFS' REPLY IN SUPPORT OF MOTION FOR PROTECTIVE ORDER MASTER FILE NO. C-07-3758-SC sf-2462509

Attorneys for Plaintiffs VETERANS FOR COMMON SENSE and VETERANS UNITED FOR TRUTH, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

VETERANS FOR COMMON SENSE and VETERANS UNITED FOR TRUTH, INC.,

Case No.

C-07-3758-SC

CLASS ACTION PLAINTIFFS' REPLY IN SUPPORT OF MOTION FOR PROTECTIVE ORDER RESTRICTING DISCLOSURE OF CONFIDENTIAL AND PRIVATE INFORMATION AND PROHIBITING RETALIATION Date: Time: Place: Judge: March 7, 2008 10:00 a.m. Courtroom 1, 17th Floor Hon. Samuel Conti

JAMES B. PEAKE, M.D., Secretary of Veterans Affairs, et al., Defendants.

Complaint Filed: July 23, 2007

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ADDITIONAL COUNSEL FOR PLAINTIFFS: ARTURO J. GONZALEZ (CA SBN 121490) [email protected] HEATHER A. MOSER (CA SBN 212686) [email protected] STACEY M. SPRENKEL (CA SBN 241689) [email protected] PAUL J. TAIRA (CA SBN 244427) [email protected] MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: 415.268.7000 Facsimile: 415.268.7522 BILL D. JANICKI (CA SBN 215960) [email protected] MORRISON & FOERSTER LLP 400 Capitol Mall, Suite 2600 Sacramento, California 95814 Telephone: 916.448.3200 Facsimile: 916.448.3222

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TABLE OF CONTENTS Page INTRODUCTION............................................................................................................... 1 MEET AND CONFER EFFORTS HAVE DRASTICALLY NARROWED THE DISPUTED ISSUES ........................................................................................................... 2 AN ORDER PROTECTING WITNESSES' CONFIDENTIAL MEDICAL INFORMATION IS AN APPROPRIATE EXERCISE OF THIS COURT'S BROAD DISCRETION IN FASHIONING PROTECTIVE ORDERS ............................. 3 A. B. The Court Has the Discretion to Enter the Requested Provision ............................ 3 Defendants' Proposed Alternative, A One-Sided Privacy Act Order, is Entirely Inadequate And Provides No Protection For Plaintiffs' Material. ............ 5

RESTRICTING WITNESS IDENTITIES TO OUTSIDE COUNSEL IS APPROPRIATE UNDER THE FACTS OF THIS CASE AND THE LAW OF THE NINTH CIRCUIT TO AVOID RETALIATION ....................................................... 6 A. B. C. The Risk of Retaliation Requires This Protective Order......................................... 7 Defendants' Opposition Relies on Cases that Do Not Apply ................................. 9 There Is No Prejudice to Defendants During This Early Pre-class Certification Phase of the Litigation, and the Public Interest Is Furthered, by Anonymity........................................................................................................ 10 Defendants Are Not Entitled to a Presumption that the VA Acts Properly According to the Law ............................................................................................ 11

DELAY IN ENTRY OF A PROTECTIVE ORDER WILL FURTHER DELAY DISCOVERY .................................................................................................................... 11 CONCLUSION ................................................................................................................. 12

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TABLE OF AUTHORITIES CASES Page Beckman Indus. v. Int'l Ins. Co., 966 F.2d 470 (9th Cir. 1992)....................................................................................................... 4 Doe v. Texaco, No. C06-02820 WHA, 2006 WL 2850035 (N.D. Cal. Oct. 5, 2006)...................................... 7, 9 Doe v. Von Eschenbach, No. 06-2131 (RMC), 2007 WL 1848013 (D.D.C. June 27, 2007)............................................ 11 Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058 (9th Cir. 2000)..................................................................................... 6, 7, 10, 11 Fischer v. City of Portland, No. CV 02-1728, 2003 WL 23537981 (D. Or. Aug. 22, 2003) .................................................. 4 L.H. v. Schwarzenegger, No. S-06-2042 LKK/GGH, 2007 WL 662463 (E.D. Cal. Feb. 28, 2007) ........................ 6, 7, 11 Nat'l Ass'n of Radiation Survivors v. Turnage, 115 F.R.D. 543 (N.D. Cal. 1987) .......................................................................................... 7, 11 Pearson v. Miller, 211 F.3d 57 (3d Cir. 2000) .......................................................................................................... 4 Quair v. Bega, 232 F.R.D. 638 (E.D. Cal. 2005)................................................................................................. 9 Qualls v. Rumsfeld, 228 F.R.D. 8 (D.D.C. 2005) .................................................................................................. 8, 11 Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) ...................................................................................................................... 4 United States v. Leavy, 422 F.2d 1155 (9th Cir. 1970)................................................................................................... 11

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STATUTES 42 U.S.C. § 201 ............................................................................................................................... 3 Federal Rule of Civil Procedure 26(c)............................................................................................. 3

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I.

INTRODUCTION Only two substantive issues remain in dispute on this motion: (1) the proposed provision

to protect confidential witness information based on privacy concerns for personal and medical history (Paragraph 2.4); and (2) the proposed outside-attorneys-eyes-only provisions to prevent retaliation by VA personnel (Paragraphs 2.3, 2.5, 7.3, 12.1, 12.2). The Court has broad discretion to fashion protective orders to protect privacy interests. Veterans' private medical information, whether submitted to the other side in discovery or submitted to the Court as testimony, is entitled to, at a minimum, protection from public disclosure. That is particularly true in this case, which focuses on highly personal issues: mental illness and the resulting harms to veterans, including unemployment, divorce, homelessness, and suicide. Defendants' proposed Privacy Act order is completely one-sided and would not protect information produced by Plaintiffs, only government records. The Court should exercise its wide discretion in fashioning a protective order appropriate to protect such sensitive and personal information from public disclosure. Another issue still in dispute on this motion is the provisions that relate to potential retaliation by the VA against veterans who participate in the lawsuit in favor of Plaintiffs. Defendants cry foul and state that they are entitled to a presumption that they will obey the law and not retaliate. While this might be proper in some circumstances, in cases like this, where a documented history of retaliation exists, a presumption is improper. Based on veterans' recent fears regarding potential retaliation as well as the VA's litigation history of retaliation in veteran suits such as the present suit, Plaintiffs' proposed provisions are appropriate under Ninth Circuit anonymity standards. Such provisions are not intended to, as Defendants suggest, impugn the integrity of counsel or the VA. The intended purpose of the provisions is to provide veterans and their family members with the protections that they feel they need in order to come forward with difficult personal stories of mental illness and suicide that comprise critical evidence in the litigation. The very nature of a mental illness disability makes these witnesses hesitant to come forward and extremely vulnerable. Without these protections, veterans and their family members could be subject to potential harm from an agency that exerts significant control over desperately needed medical care and benefits. Many veterans and their family members simply will not
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participate in this lawsuit without assurances that their information will be sufficiently protected and the threat of retaliation will be minimized, and without the knowledge that there will be consequences if the rules are broken. Absent these protections, there will be a chilling effect on the vital evidence to be submitted to the Court. II. MEET AND CONFER EFFORTS HAVE DRASTICALLY NARROWED THE DISPUTED ISSUES The long-overdue meet and confer process was successful in narrowing the disputes for the Court's determination to the following two issues: (1) the preservation of privacy and anonymity for third-party witnesses; and (2) potential retaliation against adverse witnesses.1 With respect to the two disputed issues, Defendants have generally opposed Plaintiffs' efforts to provide protections to veterans and their family members through a stipulated protective order since August 2007. Defendants finally responded to Plaintiffs' specific proposals four weeks after receipt of Plaintiffs' proposed order, in a letter dated December 21, 2007. Declaration of William Janicki in Support of Plaintiffs' Reply to Motion for Protective Order Restricting Disclosure of Confidential and Private Information and Prohibiting Retaliation ("Janicki Decl.") ¶ 7, Ex. 6.2 Plaintiffs agreed to most of Defendants' suggested edits and incorporated them into a Defendants claim they have been participating in the meet and confer process since August. Some clarification is necessary. Plaintiffs first proposed the protective order provisions in August. Defendants continuously stonewalled any substantive discussion of these two issues for the past six months, providing no substantive feedback but only knee-jerk reactions to the proposals which made no accommodations for Plaintiffs' concerns. With respect to shielding private information from public disclosure, Defendants' only response for months on end was to propose a one-sided Privacy Act order. Declaration of Steven Y. Bressler in Support of Defendants' Opposition to Plaintiffs' Motion for Protective Order ("Bressler Decl.") ¶¶ 45, 1112. Plaintiffs willingly considered the terms of the written Privacy Act order sent by Defendants but were required to reject it as one-sided without any protections for Plaintiffs' witness information. Bressler Decl. ¶ 6. Regarding the retaliation issues, Defendants refused to consider any order affording retaliation protections, but instead proposed to prevent retaliation by requiring Plaintiffs' counsel to inform them of the names of the individual veterans fearing/experiencing retaliation so they could feed those names directly to the VA to "investigate their allegations." Bressler Decl. ¶¶ 3-4. In an effort to move things along and try to obtain more substantive or productive comments, Plaintiffs drafted their own order, based on the model order in this District, and attempted to afford protections for the Privacy Act concerns of Defendants as well as the privacy and retaliation concerns of Plaintiffs. Before Plaintiffs filed this motion, Defendants stated they would not respond to Plaintiffs' proposed order until December 28, 2007. That date is five weeks after Plaintiffs submitted the final version of the proposed protective order to Defendants, hence Plaintiffs'
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revised order. Attached hereto as Exhibit A is a version of the revised proposed order with the seven paragraphs Plaintiffs understand to still be in dispute, the seven disputed paragraphs shaded for the Court's convenience.3 Plaintiffs' arguments set forth in detail below concern only the remaining disputed paragraphs. III. AN ORDER PROTECTING WITNESSES' CONFIDENTIAL MEDICAL INFORMATION IS AN APPROPRIATE EXERCISE OF THIS COURT'S BROAD DISCRETION IN FASHIONING PROTECTIVE ORDERS A. The Court Has the Discretion to Enter the Requested Provision

The first subject of dispute is Paragraph 2.4, which would permit Plaintiffs to designate as "confidential" inter alia "individual veterans' medical history or medical records or any other information protected by constitutional or statutory rights to privacy, including but not limited to information protected from disclosure under the Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C. § 201." The fact that this case involves a putative class of veterans with PTSD and the injunction currently pending specifically deals with untreated PTSD resulting in veteran suicides, the information Plaintiffs must put before the Court will invariably delve into the personal physical and mental health records of veterans. Such information cannot be left exposed to the public domain and is properly the subject of a protective order under Federal Rule of Civil Procedure 26(c). Defendants object to that common-sense provision on the ground that it would result in a "blanket protective order," which would fail to meet the requirements of the Rule. However,

(Footnote continued from previous page.)

reference to five weeks in their motion. Declaration of Heather Moser in Support of Motion for Protective Order, ¶ 4, Ex. B. Defendants ultimately provided their comments on the draft order four weeks after it was submitted to them for review, one week earlier than promised in advance of the filing of the present motion. Plaintiffs believe that petty ad hominem attacks describing the time estimates submitted to the Court as "patently false" are not a worthwhile use of the Court's time or the parties' energies and only serve to distract from the real issues to be decided. Defendants' Opposition to Plaintiffs' Motion for Protective Order ("Opposition") wastes an entire section discussing the burden of persuasion, but in a footnote, admit that issue was eliminated from the list of disputed issues by agreement of the parties. Opposition at 12:13 & n.13. The relevant changes are reflected in Paragraphs 6.3 and 6.4 of the revised order attached as Exhibit A.
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Plaintiffs' proposed protective order is not a "blanket protective order" under which all materials exchanged are considered confidential. Instead, Plaintiffs' proposed order is crafted to allow for designation of only those informational categories (e.g., private medical information) for which "good cause" can be articulated for the importance of their confidentiality in conformity with Ninth Circuit law. See Beckman Indus. v. Int'l Ins. Co., 966 F.2d 470, 475 n.4 (9th Cir. 1992) ("For `good cause shown,' the court may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.") (citing Fed. R. Civ. P. 26(c)). The Supreme Court has recognized that district courts have "broad latitude" to decide "when a protective order is appropriate and what degree of protection is required." Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984). As a result of this broad latitude, federal district courts may in their discretion enter umbrella orders to protect class of documents after a threshold showing. See Pearson v. Miller, 211 F.3d 57, 73 (3d Cir. 2000); Fischer v. City of Portland, No. CV 02-1728, 2003 WL 23537981, at *2 (D. Or. Aug. 22, 2003) ("[T]he court may issue umbrella protective orders that protect classes of documents if a threshold showing is made in appropriate circumstances."). There is also a built-in mechanism for challenging any perceived overdesignation of material in the discovery process. Exhibit A, ¶ 6. With respect to confidential material filed with the Court, as the Local Rules make clear, any confidential material that would be potentially subject to a sealing order would require an administrative motion to assess the propriety of the sealing request, such as Plaintiffs' recently granted administrative motion in conjunction with their preliminary injunction. Information designated only as "confidential" pursuant to Paragraph 2.4 would not be restricted to outside-attorneys'-eyes only. Exhibit A, ¶ 7.2(a) (including House Counsel); Opposition at 3. It is merely intended to permit Plaintiffs to designate and shield private medical information and personal details of family tragedies from public view, which meets the threshold showing required for such an order. See Pearson, 211 F.3d at 72-73 ("Legitimate interests in privacy are among the proper subjects of this provision's protection. . . . The injury shown, however, need be no more than `embarrassment'.").
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B.

Defendants' Proposed Alternative, a One-Sided Privacy Act Order, Is Entirely Inadequate and Provides No Protection for Plaintiffs' Material

Defendants' opposition attempts to argue that the proposed Privacy Act protective order offered by Defendants would be suitable for this case and that multiple protective orders should be used to govern various aspects of the case. Opposition 2:15-22. That argument fails for several reasons. First, Defendants' Privacy Act protective order is far too narrow. It applies only to material specifically covered by the Privacy Act and excludes all else. Bressler Decl. Ex. B, ¶ 1 (defining covered "records" as 5 U.S.C. §552a(a)(4)); ¶ 11 ("This Order does not apply to any information or documents other than information or documents that are subject to the Privacy Act."); 5 U.S.C. § 552a(a)(4) (the term "`record' means any item, collection, or grouping of information about an individual that is maintained by an agency") (emphasis added). What that means in practical terms is that, because the Privacy Act covers only private information held by the government, the order does not extend to any unique material produced in discovery or submitted to the Court on behalf of veteran witnesses. Appropriate protections must also be afforded to documents and testimony not covered by the Privacy Act, such as witness statements and deposition testimony regarding the most sensitive matters imaginable, mental illness and family suicide. Second, Defendants insisted on the purportedly "standard" provision that Plaintiffs hold them harmless should any Privacy Act information revealed in this litigation be used inappropriately: Neither the United States of America, United States Department of Justice, the Department of Veterans Affairs, the U.S. Court of Appeals for Veterans Claims, nor any of their officers, employees, or attorneys, shall bear any responsibility or liability for any unauthorized disclosure of any documents obtained by Plaintiffs' counsel under this Order, or of any information contained in such documents. Bressler Decl., Ex. B, ¶ 9. Such a provision is inappropriately self-indulgent, because standard protections for disclosure and use of protected information are sufficient. Even assuming such "unauthorized disclosure" were to occur, Defendants would not be without a remedy. Paragraph 9 sets forth a procedure for unauthorized disclosure, which includes the risk of sanctions for
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disclosure for an improper purpose. Information properly marked as "confidential" covered by that Paragraph includes "agency `records' as defined in 5 U.S.C. § 552a(a)(4)" in Paragraph 2.4. Defendants' proposed absolution provision does not provide a remedy, but instead takes an incredible step beyond what is necessary. The government's liability for unauthorized disclosure of information is to the veterans whose private information is disclosed. The VA is asking the Court to preemptively waive any potential liability with respect to those veterans, without regard to the circumstances of the disclosure. This provision is far overreaching and is not necessary given Paragraph 9's procedure for unauthorized or inadvertent disclosure of confidential information. Finally, this case should have a single protective order that governs all private and confidential information rather than multiple orders as proposed by Defendants. A multiplicity of orders would only serve to inject confusion into an already complex case. IV. RESTRICTING WITNESS IDENTITIES TO OUTSIDE COUNSEL IS APPROPRIATE UNDER THE FACTS OF THIS CASE AND THE LAW OF THE NINTH CIRCUIT TO AVOID RETALIATION The second major category of disputed proposed provisions all provide protections for veteran witnesses' fear of retaliation by the VA for their participation in the suit on behalf of Plaintiffs. Exhibit A, Paragraphs 2.3, 2.5, 2.13, 7.3, 12.1, and 12.2. The Ninth Circuit's holding in Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058 (9th Cir. 2000), sets forth the controlling legal standards governing a district court's discretionary decision to permit a party to proceed anonymously.4 Advanced Textile, 214 F.3d at 1068; see also L.H. v. Schwarzenegger, No. S-06-2042 LKK/GGH, 2007 WL 662463, at *15 (E.D. Cal. Feb. 28, 2007). Advanced Textile recognizes that many federal courts, including the Ninth Circuit, have permitted parties to proceed anonymously when special circumstances exist. Advanced Textile, 214 F.3d at 1067. Courts allow a party to use pseudonyms in three situations: (1) when there is a risk of retaliation; (2) to preserve privacy in a matter of sensitive and highly personal nature; or (3) when there is a risk of criminal prosecution. Id. at 1067-1068.
4

The facts of this case involve third party witnesses rather than the named parties.

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In the case at hand, Advanced Textile provides an addition two independent reasons to proceed anonymously. Without these protections, veterans and their family members could be subject to potential harm from an agency that exerts significant control over desperately needed medical care and benefits. A. The Risk of Retaliation Requires This Protective Order

Advanced Textile further held that where pseudonyms are used to protect a party from retaliation, the court evaluates three factors: (1) the severity of the threatened harm; (2) the reasonableness of the party's fears; and (3) the party's vulnerability to such retaliation. Advanced Textile, 214 F.3d at 1068. As noted in Schwarzenegger, "[a] severe harm falls somewhere between, social stigma and the job loss, deportation, and reprisals against family members." 2007 WL 662463, at *15 (internal citations omitted). Here, veterans and their family members face not social stigma or embarrassment, but risk the revelation of a loved one's mental illness or suicide, or the delay or denial of benefits and health care. Plaintiffs' moving papers detailed the harms that could befall veteran and family member witnesses who participate in this litigation. The reasonableness of a party's fears is determined by the unique set of circumstances for a particular case. The very nature of the disability at issue here, PTSD, makes veterans hesitant to come forward and fear retaliation. PTSD is a severe mental illness and certainly provides a reasonable basis for veterans' fears. In addition, courts may "consider evidence of a history of retaliatory practices" in determining the reasonableness of the party's fears. Id. at *16. The VA is not often in Court defending against systemic litigation regarding veterans' rights, but when it has been so involved, there has been evidence of retaliation against adverse witnesses. One such case was before this Court, Nat'l Ass'n of Radiation Survivors v. Turnage, 115 F.R.D. 543 (N.D. Cal. 1987). Opening Brief at 9-10; Erspamer Decl. By contrast, none of the cases cited by Defendants regarding reasonableness have the serious retaliatory history documented in this action. Doe v. Texaco, No. C06-02820 WHA, 2006 WL 2850035, at *5 (N.D. Cal. Oct. 5, 2006) (specifically noting the lack of history of retaliation against individuals in prior, related

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litigation); Qualls v. Rumsfield, 228 F.R.D. 8 (D.D.C. 2005) (addressing protective orders, but silent regarding any historical record of retaliation).5 With so much at stake, it is entirely reasonable that veterans may be cowed into silence. Should veterans or claimants proceed without anonymity, their medical care may suffer, claims may be denied or delayed, and benefits may be terminated. More importantly, the fear of retaliation expressed by many veterans has a chilling effect on the legal process. Without the protections offered by Plaintiffs, veterans will be too afraid to testify or participate in any way in this lawsuit. Indeed, Plaintiffs are in contact with several veterans who will not authorize the use of their declarations in court proceedings precisely because of this fear of retaliation from the VA. Janicki Decl., ¶ 15. The consequences of retaliation would chill participation in this very important lawsuit. Defendants' opposition fails to refute the reasonable fears of retaliation by veterans who suffer from PTSD. Finally, the court considers the vulnerability to such retaliation. Veterans and their family members are under the control and power of the VA for needed medical care and disability or death compensation, making them particularly vulnerable to VA retaliation. Veterans who suffer from posttraumatic stress disorder are often totally dependent on the VA for medical care and disability benefits. Defendants' opposition omits any discussion of the vulnerability of veterans and their family members to the VA and cannot refute the reasonableness of particularly vulnerable veterans and family members who fear retaliation from the VA.

Furthermore, the cases cited by the VA regarding remoteness of time and isolated incidents are completely inapposite to the case at bar, which involves a documented pattern of historical retaliation when the VA has been involved in this type of litigation. Coleman v. Exxon Chem. Corp., 162 F. Supp. 2d 593, 625 (S.D. Tex. 2001) (finding remoteness in an employment discrimination case involving four statements made twenty years prior to the litigation); San Francisco Police Comm'n v. Police Comm'n, No. C95-4459, 1996 U.S. Dist. LEXIS 6837, at *9 n.5 (N.D. Cal. May 8, 1996) (holding that a single incident four years prior could not establish department policy); United States v. James, 139 F.3d 709, 713 (9th Cir. 1998) (ruling, in a criminal case, that a single incident of racial prejudice was not probative evidence 12 years later); Johnson v. Alameda-Contra Costa Transit Dist., No. C-04-4879 MMC, 2006 U.S. Dist. LEXIS 67888, at *15 (N.D. Cal. Sept 8, 2006)(holding that discriminatory remarks were not probative when described in conclusory fashion ten years after their occurrence).

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B.

Defendants' Opposition Relies on Cases that Do Not Apply

Defendants' opposition also mistakenly relies upon Quair v. Bega, 232 F.R.D. 638 (E.D. Cal. 2005). The holding in Quair simply does not apply to the pre-class certification stage of this litigation and the facts of this case. Quair's concern about concealing critical trial witness does not apply at this stage of the proceedings. Id. at 641. Third-party veteran and family member witnesses in this case may never be required to testify at trial at all. Indeed, Plaintiffs' Proposed Protective Order specifically excludes trial proceedings. Exhibit A; Proposed Protective Order, ¶ 2.2 ("This Order specifically excludes any material or testimony to be produced or used during trial."). In Quair, the court determined that the fear of retaliation was not reasonable because the threat was not capable of being carried out. Id. At 641. The threat of retaliation from the VA is real and is capable of being carried out.6 The VA certainly has the power and ability to carry out retaliation, unlike the single individual identified by the witnesses in Quair. Id. Quair does not inform the Court's analysis in this case because Plaintiffs do not seek to conceal trial witnesses, the reasonableness of veterans and family members who fear retaliation is without question, and the threatened retaliation is real and capable of being carried out. Defendants' opposition also mistakenly relies upon Doe v. Texaco, No. C06-02820 WHA, 2006 WL 2850035 (N.D. Cal. Oct. 5, 2006). The plaintiffs in Texaco were not vulnerable to retaliation because they were not subject to the control of the third parties from whom they feared retaliation and there was no evidence of retaliation in a similar lawsuit. Id. at *4, 5. In contrast, this lawsuit involves veterans and surviving family members with a reasonable fear of retaliation who have listed specific acts of retaliation to which they are particularly vulnerable from the VA. The VA is not a third party without any control over those who fear such retaliation as was the case in Texaco. Moreover, in analogous litigation, the VA has carried out such retaliation in the past. All of Defendants' authorities are distinguishable on their facts; denials of motions to Family members may be under the control and power of the VA because, as survivors, they may have a claim for death benefits on behalf of a deceased veteran or a claim for disability benefits on behalf of a disabled family member veteran.
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proceed anonymously were based on a factual determination regarding the fear of retaliation. Those holdings are simply inapposite to veterans and family members who reasonably fear retaliation by the VA. C. There Is No Prejudice to Defendants During This Early Pre-class Certification Phase of the Litigation, and the Public Interest Is Furthered, by Anonymity

In determining whether a party may proceed anonymously, the Court must also consider the precise prejudice to Defendants at each stage of the proceedings and decide whether the public interest would be best served by the parties revealing their identities. Advanced Textile, 214 F.3d at 1068. The Court's determination "may change as the litigation progresses" and the facts and circumstances of the case evolve. Id. at 1069. This class action lawsuit is in the very early stage of pre-trial proceedings, and class certification has yet to be determined. At this stage there is absolutely no prejudice to Defendants for certain witnesses to be restricted to "outside attorneys' eyes only." There is no need for the adjudication of any individual veteran or family member claim at this stage, and the proposed order does not have the effect of concealing any trial witness from Defendants. Defendants fail to explain how they would be prejudiced at this stage of the proceedings where individual veteran medical care and benefits adjudication is not required. Defendants make conclusory allegations that Defendants' anonymity at this stage of the proceedings would "interfere with Defendants' basic right to mount a defense to the allegations against them." Opposition at 6:27­7:1. The proposed order does not prevent a meaningful investigation into witness claims. The order provides that Defendants' outside counsel "shall develop a procedure for obtaining access to veteran records from the VA such as claim files and medical records that, to the maximum extent possible, protects the identity of the veteran or claimant and does not indicate the specific purpose for the request." Ex A, Proposed Protective Order, ¶ 12.2. Defendants' outside attorneys can develop any number of procedures to comply with this provision, such as obtaining the documents themselves, employing an outside vendor to perform this task for them, or making some other proposal for Plaintiffs to consider. This provision is

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flexible enough to provide access to the required information by Defendants' outside counsel while protecting veterans and claimants from retaliation and preserving their privacy interests. The public interest also favors concealing veteran and family member identities. The public has an interest in seeing this case decided on its merits. Veterans' suits that protect statutory rights benefit the public. As here, when a party's willingness to participate in litigation is chilled by fear of retaliatory action, public interest in seeing the suit move forward on its merits outweighs the public interest in the witnesses' identities. Advanced Textile, 214 F.3d at 1073; Schwarzenegger, 2007 WL 662463, at *18. Without these protections, veterans and family members will not come forward and participate in this suit. D. Defendants Are Not Entitled to a Presumption that the VA Acts Properly According to the Law

Defendants' opposition attempts to rely on a presumption that the VA, as a government agency, "act[s] properly and according[sic] to the law" in arguing against witness anonymity. Opposition at 11:15. However, as noted in Defendants' opposition, this presumption is only available "from a barren record." United States v. Leavy, 422 F.2d 1155, 1157 (9th Cir. 1970). The record is far from barren in this case. As set forth above, multiple declarations detail specific examples of retaliation by the VA, and many such practices were witnessed in a case heard before this Court, National Association of Radiation Survivors v. Turnage, 115 F.R.D. 543. Erspamer Decl.; Cushman Decl. The VA is entitled to no such presumption in this instance. Moreover, the fact that the VA is a government agency actually favors the use of witness pseudonyms. Qualls, 228 F.R.D. at 11 ("[c]ourts may be more inclined to permit pseudonymous suits by plaintiffs when the government is the defendant"); Doe v. Von Eschenbach, No. 06-2131 (RMC), 2007 WL 1848013, at *2 n.3 (D.D.C. June 27, 2007) ("[w]hen a plaintiff challenges the government or government activity, courts are more likely to permit plaintiffs to proceed under a pseudonym than if an individual has been accused publicly of wrongdoing").

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V.

DELAY IN ENTRY OF A PROTECTIVE ORDER WILL FURTHER DELAY DISCOVERY Defendants have refused to respond to any of Plaintiffs' document requests, even after

their motion to dismiss was denied, on the ground that there is no protective order in place. Janicki Decl. ¶ 12. Defendants' objection based on the Privacy Act comes at the very same time Defendants oppose Plaintiffs' motion for protective order provision designed to cover Privacy Act material.7 Exhibit A, ¶ 2.4.

Plaintiffs served Defendants with their First Amended First Requests for Production of Documents on October 19, 2007, and their Second Requests for Production of Documents on November 16, 2007. Id., ¶¶ 2, 3, Exs. 1, 2. Plaintiffs made it clear they expect document production to begin immediately upon the Court's ruling on Defendants' Motion to Dismiss. Id., ¶ 5, Ex. 4. Plaintiffs even offered to provisionally treat all documents as confidential under whatever form of the proposed protective order might ensue, but Defendants refused. Id., ¶ 10, Ex. 9. Defendants now refuse to provide any discovery based on alleged Privacy Act concerns, even though Defendants' motion for protective order on November 9, 2007, has been lifted. They did not object to or even mention the discovery obligations contained in the Privacy Act. Id., ¶ 4, Ex. 3. By the time this Court granted Plaintiffs' sealing request and lifted the stay of discovery, Plaintiffs' first and second requests for the production of documents were long overdue. Id., ¶¶ 2, 3, Exs. 1, 2. Defendants still have not responded to this outstanding discovery, even as to documents not subject to a protective order. Instead, they have produced a small number of selfserving public documents purportedly responsive to three requests of the 191 outstanding requests.

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VI.

CONCLUSION For the foregoing reasons, Plaintiffs request that the Court enter the revised Proposed

Protective Order submitted herewith restricting the disclosure of confidential and private information and prohibiting retaliation.

Dated: February 6, 2008

GORDON P. ERSPAMER ARTURO J. GONZALEZ HEATHER A. MOSER BILL D. JANICKI STACEY M. SPRENKEL PAUL J. TAIRA MORRISON & FOERSTER LLP

By /s/ William D. Janicki William D. Janicki [email protected] Attorneys for Plaintiffs

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