In the United States Court of Federal Claims

Nos. 21-1116C, 21-1118C & 21-1119C

(Filed: September 9, 2021)

NOT FOR PUBLICATION

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CONNECTICUT YANKEE ATOMIC *

POWER COMPANY, *

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Plaintiff, *

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v. *

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THE UNITED STATES, *

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Defendant. *

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MAINE YANKEE ATOMIC *

POWER COMPANY, *

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Plaintiff, *

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v. *

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THE UNITED STATES, *

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Defendant. *

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YANKEE ATOMIC *

ELECTRIC COMPANY, *

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Plaintiff, *

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v. *

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THE UNITED STATES, *

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Defendant. *

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ORDER 

The parties have jointly moved for entry of a protective order. See Motion (ECF 

14). Because the proposed protective order is defective in several respects, the motion 

is DENIED without prejudice.

Protective orders are governed by RCFC 26(c), which provides that the Court 

may, “for good cause,” take measures to “protect a party or person from annoyance, 

embarrassment, oppression, or undue burden or expense.” See RCFC 26(c)(1). Such 

measures may include, inter alia, “requiring that a trade secret or other confidential 

research, development, or commercial information not be revealed or be revealed only 

in a specified way.” RCFC 26(c)(1)(G). Where good cause exists for protection, this 

Court can “exercise its sound discretion” to establish confidentiality. Harris v. Amoco 

Prod. Co., 768 F.2d 669, 684 (5th Cir. 1985) (applying the then-applicable version of 

the analogous Federal Rules of Civil Procedure). But when it comes to secrecy of this 

Court’s records, the Court must do so in light of the “strong presumption in favor of 

a common law right of public access to court proceedings.” In re Violation of Rule 

28(D), 635 F.3d 1352, 1356 (Fed. Cir. 2011). 

The parties’ proposal for sealing confidential materials filed with the Court is 

inconsistent with the presumption of public access. Under the proposed protective 

order, the parties could designate materials as confidential on a categorical basis, 

without even reviewing all of them. See Proposed Protective Order ¶ 9 (ECF 14-1). 

Although “blanket” protection of that sort is permitted, the parties’ proposal goes 

further: When materials designated as confidential are filed with the Court, they 

would have to be filed under seal unless another party objects to confidentiality. Id.

¶¶ 6, 10. The proposed protective order would not require the parties to file either a 

motion for leave to file under seal or a redacted version of a sealed filing; judicial 

records could instead be sealed based on nothing more than attorney inertia. The 

parties would thereby avoid having to show “good cause for restricting the disclosure 

of the information at issue.” In re Violation of Rule 28(D), 635 F.3d at 1358; see also, 

e.g., Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1130 (9th Cir. 2003) (“A 

party asserting good cause bears the burden, for each particular document it seeks to 

protect, of showing that specific prejudice or harm will result if no protective order is

granted.”). That, in turn, risks depriving the public of its common-law right to see 

what the Court and the parties are up to. In re Violation of Rule 28(D), 635 F.3d at 

1356; see also United States v. Cianfrani, 573 F.2d 835, 851 (3d Cir. 1978) (“Public 

confidence [in the judiciary] cannot long be maintained where important judicial 

decisions are made behind closed doors and then announced in conclusive terms to 

the public, with the record supporting the court’s decision sealed from public view.”). 

To compound that problem, the proposed protective order’s definition of 

“Confidential Material” is potentially overbroad. See Proposed Protective Order ¶ 1. 

The parties propose extending confidentiality protection not only to material carrying 

legitimate confidentiality concerns, but to “all notes made therefrom and all 

references made thereto, of any kind whatsoever[.]” Id. That definition could be read 

to cover even “notes” and “references” that are already publicly available, or that do 
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not themselves disclose anything confidential. That is improper: Unless documents 

actually contain confidential information, they should not be treated as confidential. 

See, e.g., In re Violation of Rule 28(D), 635 F.3d at 1360 (“The marking of legal 

argument as confidential under Rule 26(c)(1)(G) cannot be justified unless the 

argument discloses facts or figures of genuine competitive or commercial 

significance.”). In conjunction with the sealing procedures just described, the parties’ 

proposal might lead to sealing documents that are not “confidential” in any legitimate 

sense. 

A separate problem arises in the proposed protective order’s treatment of the 

Privacy Act, which restricts federal agencies from disclosing certain regularly

maintained information about individuals without the person’s consent. 5 U.S.C. 

§ 552a(b). The Privacy Act includes an exception for disclosures pursuant to court 

order. 5 U.S.C. § 552a(b)(11). The parties propose that if Plaintiffs request 

information covered by the Privacy Act, Defendant will “release to opposing counsel 

in these cases records which are relevant to this action ... without obtaining prior 

written consent of the individual to whom such records pertain.” See Proposed 

Protective Order ¶ 12. But the parties do not say whose information might be 

discoverable, what kind of information Plaintiffs might seek, or why they need it.

That is baffling: The parties want this Court to extinguish the statutory privacy 

rights of absent, unrepresented third parties, without a shred of legal or factual 

justification, based solely on the litigants’ bilateral agreement. 

The proposed protective order thus requires automatic sealing of documents 

that are not confidential under any permissible scope of confidentiality, while 

authorizing entirely unexplained exchanges of individuals’ private information that 

would ordinarily be forbidden by statute. Although the parties no doubt intended to 

comply with the law governing protective orders, their proposal therefore fails. 

Rather than attempting to correct the defects in the proposed protective order 

sua sponte, I DENY the motion without prejudice. The parties may propose a revised 

protective order that complies with the foregoing principles.

IT IS SO ORDERED.

s/ Stephen S. Schwartz

STEPHEN S. SCHWARTZ 

Judge