March 27, 2014
CBCA 3450
KIEWIT-TURNER A JOINT VENTURE,
                                                    Appellant,
v. 
DEPARTMENT OF VETERANS AFFAIRS,
                                                        Respondent.
William E. Dorris, Chad V. Theriot, Reginald A. Williamson, and Damian M.
Brychcy of Kilpatrick Townsend & Stockton LLP, Atlanta, GA; and Michael A. Branca
of Peckar & Abramson, P.C., Washington, DC, counsel for Appellant.
Charlma Quarles, Khaliah Wrenn, Joylyn Winter, Benjamin Diliberto, and
Eyvonne Mallet, Office of General Counsel, Department of Veterans Affairs,
Washington, DC, counsel for Respondent.
STEEL, Board Judge.
ORDER
The underlying dispute involves a contract between Kiewit-Turner, a Joint Venture
(KT or appellant) and the Department of Veterans Affairs (VA or respondent) in which
appellant seeks a declaratory judgment entitling it to suspension of performance in the
construction of the Denver Replacement Medical Center in Aurora, Colorado (Project). 
Discovery has commenced.  On January 16, 2014, appellant began, but did not complete,
its videotaped deposition of the VA contracting officer.  Respondent objected to the video

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deposition and requested that use of the video and transcripts be limited to the parties. 
The Board provisionally granted respondent’s request by telephone and offered it the
chance to file a supporting motion.
Now, pursuant to Civilian Board of Contract of Appeals Rule 13(f) (48 CFR
6101.13(f) (2013)), respondent seeks a protective order to prohibit public disclosure of
the videotaped depositions and typed transcripts (collectively, the depositions) of all the
VA employee deponents.  The VA filed its motion for protective order under seal. 
Appellant opposes the motion and requests, in addition to the denial of the VA’s motion
for protective order covering the depositions of all its employee deponents, that
Respondent’s motion be unsealed and made available to the public.  For the reasons set
forth below, Respondent’s motion is granted in part and denied in part, and Appellant’s
motions is denied. 
Discussion
Respondent’s Motion for Protective Order
The thrust of Respondent’s argument is that there is no presumption in favor of the
public’s right to access materials exchanged during pretrial discovery.  Respondent
maintains that the depositions contain confidential information related to personnel issues
involving the VA employee deponents that “describes embarrassing activity” which may
“cause unnecessary or serious damage to working relationships among the individuals.” 
Respondent urges that, if disseminated, the depositions are susceptible to abuse by the
media, and “deponents would suffer at seeing clips of the deposition on the news[.]”  The
potential for media abuse, the VA contends, thus establishes good cause justifying an
order covering both the video and typed transcript materials. 
Appellant asserts that there is a strong presumption in favor of the public’s right to
know about the VA’s handling of the Project that far outweighs any interest the VA has in
maintaining confidentiality.  The acts and omissions of government employees and the
level of public funds involved, in its view, make the deposition testimony highly relevant
to the public.  Appellant further contends that the VA fails to identify any specific
personal or confidential information worthy of protection, or to prove that any injury
would result from disclosure.  Finally, because the existing protective order already
permits redaction of any personal or confidential information before being disclosed, it
argues that the VA has not shown good cause for the broad protection it seeks. 

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The Public Right of Access to Pretrial Discovery Materials
American courts have long recognized a general common law right of the public to
“inspect and copy public records and documents, including judicial records and
documents.”  Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978)
(footnotes omitted).  This right, however, is not absolute, and, for just as long as courts
have recognized this right, they have struggled to mark its boundaries.  Id. at 598.
The United States Supreme Court has drawn the line of the public’s right of access
between filed and unfiled discovery materials.  Seattle Times Co. v. Rhinehart, 467 U.S.
20, 33 (1984).  There, in rejecting the newspaper petitioner’s First Amendment challenge
to a protective order issued covering pretrial discovery materials it sought, the Court
noted:
Pretrial depositions and interrogatories are not public components of a civil
trial.  Such proceedings were not open to the public at common law, and, in
general, they are conducted in private as a matter of modern practice.  Much
of the information that surfaces during pretrial discovery may be unrelated,
or only tangentially related, to the underlying cause of action.  Therefore,
restraints placed on discovered, but not yet admitted, information are not a
restriction on a traditionally public source of information. 
Id. (footnote and citations omitted).  Therefore, there is no presumptive right of public
access to unfiled discovery materials.
A predecessor board of contract appeals has endorsed this proposition.  Virtexco
Corp., DOT BCA 3092, 99-1 BCA ¶ 30,176, at 149,307 (1998) (“Information obtained in
the course of pretrial discovery is not a judicial record subject to the common law
presumption of the right of access by the general public.”); Aerospatiale Helicopter
Corp., DOT BCA 1905, et al., 89-1 BCA ¶ 21,502, at 108,334-35 (1988) (“The fruits of
discovery are not available to the public unless or until they become part of the record.”).  
Moreover, this presumed right of access is further undermined by the 2000
amendment to Federal Rule of Civil Procedure 5(d).  Prior to 2000, the language of Rule
5(d) supported a presumption of a right of public access because the Rule required all
discovery to be filed with the court, except for good cause, and several courts so held. 
See Gregory P. Joseph, Rule 5(d) and Public Access to Discovery Materials in Federal
Court, 18 No. 1 Prac. Litigator 45 (Jan. 2007).  The Rule now states that certain materials

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(including depositions) “must not be filed until they are used in a court proceeding or the
court orders filing[.]”  Fed. R. Civ. P. 5(d)(1) (emphasis added).  Rule 5(d) in its present
form thus weakens any presumption of public access to unfiled discovery.  Id.; see also
Bond v. Utreras, 585 F.3d 1061, 1075-76 (7th Cir. 2009).
Most of the materials at issue here are not yet a part of the record.  Accordingly,
the depositions are not presumptively public. 
Good Cause
While no presumption of public access attaches to the depositions, the Board may
also “seal the [depositions] in issue if they warrant protection from public disclosure.” 
Ann Riley Associates, Ltd., DOT BCA 2418, 91-3 BCA ¶ 24,193, at 121,004.  Under
Board Rule 13(f), the Board may issue protective orders to shield “a party or person from
annoyance, embarrassment, oppression, or undue burden or expense[.]”  Rule 13(f)
mirrors the language of Federal Rule of Civil Procedure 26(c), which gives courts
discretion to issue protective orders upon a showing of good cause.  This standard has
been applied by both the Supreme Court, Seattle Times, 497 U.S. at 34 (“a protective
order is entered on a showing of good cause as required by Rule 26(c)”), and the
Department of Transportation Board of Contract Appeals.  See, e.g., Virtexco. 
Good cause is shown when the party seeking the order has established that
“disclosure will work a clearly defined and serious injury.”  Virtexco, 99-1 BCA at
149,307.  Further, the injury must be shown with specificity.  Id.  “Broad allegations of
harm, unsubstantiated by specific examples or articulated reasoning, do not support a
showing of good cause.”  Id.  Finally, the onus is on the party seeking a protective order
to “demonstrat[e] the confidentiality of the information to be protected from disclosure.” 
Id. (internal citation omitted). 
Respondent fails to meet this standard. The VA has not articulated a clearly
defined or serious injury.  As an initial matter, Respondent fails to state the kind of
information sought to be protected or why this information is private and confidential in
the first place.  See Virtexco, 99-1 BCA at 149,308 (finding parties’ request for protective
order did not “identif[y] the category of information to be protected” and failed to
“demonstrat[e] the legitimacy of the claim that the information is indeed proprietary
and/or confidential”).  Even assuming the confidential nature of the information sought to
be guarded from disclosure, harm to employee deponents’ working relationships is not the
kind of harm the courts or our predecessor board have recognized as good cause in
granting a protective order.  See, e.g., Seattle Times, 467 U.S. at 28 (“annoyance,

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embarrassment, and even oppression” from disclosure of foundation membership lists and
amounts donated to it over a five-year period).  Though respondent describes one instance
in which other pretrial discovery material (an email exchange between the parties) came
into the hands of a non-party, the purported damage disclosure would work upon the
interpersonal relationships of VA employees is a broad allegation of harm that generally
would not support a showing of good cause. 
However, “[t]he determination of whether information should be sealed is vested
in the discretion of the trial court.”  Ann Riley Associates, 91-3 BCA at 121,004.  Such
discretion is “to be exercised in light of the relevant facts and circumstances of the
particular case.”  Id. (quoting Nixon, 435 U.S. at 598 (noting the court’s power to deny
access where materials may “become a vehicle for improper purposes”)).  “It is clear from
experience that pretrial discovery by depositions . . . has a significant potential for abuse.” 
Seattle Times, 467 U.S. at 34 (footnote omitted).  Videotaped depositions are especially
vulnerable to potential abuse.  Stern v. Cosby, 529 F. Supp. 2d 417 (S.D.N.Y. 2007). 
While typed transcripts have similar potential for misuse as videotape, they are not apt to
be used in the same manner as videotape, which “can be cut and spliced and used as
‘sound bites’ on the evening news.”  Id. at 422.  The case before us has already garnered
significant media attention in both the Colorado and national press.  In such a case,
permitting public disclosure of the videotaped depositions, which are properly used to
“facilitate presentation of evidence to [the Board],” would expose them to the risk of
being exploited as “a vehicle for generating content for broadcast and other media.”  Id. at
422-23 (internal quotation marks and citation omitted).  The videotaped depositions
should therefore be subject to the standing protective order in this appeal.
It is within a tribunal’s supervisory power to ensure the integrity of proceedings. 
The more appropriate public use of videotaped depositions and transcripts takes place in
judicial proceedings, not the editing booth of the newsroom or internet media.  Video
depositions and other forms of electronic media, if made public, can more readily be used
for improper purposes by the media than transcripts.  Therefore, Respondent’s motion is
granted with respect to the videotaped depositions.  With respect to the typed transcripts,
the motion is denied, except insofar as they are also protected as unfiled discovery
materials. 
Appellant’s Motion to Unseal
The VA filed its motion for protective order under seal.  Appellant requests that
this motion be unsealed and made available to the public.  In addressing this issue, we

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must first determine what right, if any, the public has to the motions themselves, which
contain some of the material obtained in the discovery process.
A motion filed with the Board is a “public component of a civil trial.”  Bank of
America National Trust and Savings Association v. Hotel Rittenhouse Associates, 800
F.2d 339, 343-44 (3d Cir. 1986).  While there is no presumption favoring public access to
pretrial discovery, it is well settled that such a presumption attaches to documents filed
with the Board.  Such access promotes “informed discussion of governmental affairs by
providing the public with [a] more complete understanding of the judicial system and the
public perception of fairness which can be achieved only by permitting full public view of
the proceedings.”  Id. at 345.  Accordingly, “the common law presumption of access
attaches to motions filed in court proceedings[.]”  Id. at 343.  
The right of access presumption changes, however, when the motions themselves
contain materials obtained in discovery.  Leucadia, Inc. v. Applied Extrusion
Technologies, Inc., 998 F.2d 157 (3d Cir. 1993).  The Leucadia court refused to ignore
the line clearly drawn in Seattle Times between filed judicial documents and unfiled
discovery.  Id. at 165.  Thus, it held that “there is a presumptive right to public access to
all material filed in connection with nondiscovery pretrial motions, whether these motions
are case dispositive or not, but no such right as to discovery motions and their supporting
documents.”  Id. (emphasis added). 
Though, with respect to the presumption of public access, Leucadia expressed that
the distinction between procedural and more substantive motions was unimportant as to
nondiscovery motions, other courts have found this distinction significant as to discovery
motions.  “[T]he strong weight to be accorded the public right of access to judicial
documents was largely derived from the role those documents played in determining
litigants’ substantive rights—conduct at the heart of Article III—and from the need for
public monitoring of that conduct.”  United States v. Amodeo, 71 F.3d 1044, 1049 (2d
Cir. 1995).  Thus, the presumption of public access is stronger where the documents in
question (e.g., a motion for summary judgment) effectively adjudicate the litigants’ rights. 
Id. at 1050; see also Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304,
1312 & n.11 (11th Cir. 2001) (“material filed with discovery motions is not subject to the
common-law right of access, whereas discovery material filed in connection with pretrial
motions that require judicial resolution of the merits is subject to the common-law right”). 
Here, the documents in question are discovery motions: the VA’s motion for
protective order and KT’s motion in opposition and motion to unseal, which includes
reference to, and nearly 200 pages of excerpts from, the deposition transcripts.  As such,

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there is no presumption in favor of public access to these motions or their supporting
documents.  The motions here are procedural in nature, as opposed to substantive motions
effectively adjudicating the parties’ rights or respecting the merits of their claims. 
Appellant’s motion to unseal and make both parties’ motions available to the
public is therefore denied. 
Decision
 Accordingly, Respondent’s motion is GRANTED IN PART as to videotaped
deposition media, and Respondent’s motion is DENIED IN PART as to protection of
typed deposition transcripts.  Appellant’s motion is DENIED. 
______________________________
CANDIDA S. STEEL
Board Judge