1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) RICHARD G. CONVERTINO, ) ) Plaintiff, ) ) v. ) Civil Action 04-0236 (RCL) ) UNITED STATES DEPARTMENT OF ) JUSTICE, et al. , ) ) Defendant. ) ____________________________________)

MEMORANDUM OPINION This matter comes before the Court on the pl aintiff’s Cross-Motion [128] for a Protective Order. Upon consideration of plaintiff’s Cro ss-Motion for a Protective Order [128], defendant’s Response [134], the applicable law, and the entire record herein, the C ourt concludes that the plaintiff’s Cross-Motion is DENIED. BACKGROUND Plaintiff, Richard G. Convertino filed the Complaint against the United States Department of Justice (“DOJ”) on February 13, 2004, raising two counts. (Compl. ¶¶ 24-143.) One count has been dismissed leaving only wh ether defendant willfully and intentionally disclosed information to a reporter for the Detroit Free Press in violation of the Privacy Act. (Def.’s Opp. to Pl.’s Mot. to Compel at 3-4.) The disclosed information included documents related to an investig ation into plaintiff’s conduct by de fendant’s Office of Professional Responsibility (“OPR”). (Compl. ¶¶ 109-113.) Plaintiff claims that “[t]he improper releases of information concerning plaintiff caused the plaintiff significant harm, including physical injury,2 emotional distress and a loss of professional repu tation.” (Compl. ¶ 22.) In response to these claims defendant has requested that plainti ff undergo an independent medical examination. Defendant has made several attempts to “obtain Plaintiff’s consent to conduct an independent medical examination (“IME”).” (Def.’ s Opp’n to Pl.’s Mot. for a Protective Order at 1.) Plaintiff has now agreed to allow an IM E to be conducted subject to the Court entering an additional protective order dictat ing the conditions “under which a ny IME of [plaintiff] may be conducted, and to limit the circumstances under whic h any and all information related to the IME may be used.” (Pl.’s Cross-Mot. for a Protec tive Order at 1.) Defenda nt opposes some of the conditions that plaintiff s eeks in the protective orde r. (Def.’s Opp’n to Pl.’s Mot. for a Protective Order at 1.) ANALYSIS Fed. R. Civ. P. 26(c) authorizes a court to enter a protective order to ensure a requesting party is protected from a number of specific harms. Fed. R. Civ. P. 26(c). However, there must be a good cause for such an order and the parties must have first attempted to reso lve the issues in good faith before resorting to a court issued protective order. Id. (“The motion must include a certification that the movant ha s in good faith conferred or at tempted to confer with other affected parties in an effort to reso lve the dispute without court action.”). There is no good cause to issue an additional protective order. The original protective order has been sufficient for plaintiff until now and it is unnecessary to re-create a protective order. As originally ordered “any and all inform ation contained in such materials shall be used only by those persons listed . . . and only for th e purpose of this litiga tion and shall not be3 disclosed, in any manner whatsoever, to anyone for any other purpose.” (Order at 2, Apr. 21, 2006.) Therefore, the original protective order [44] will apply to IME materials. 1
I. Plaintiff’s Limitations Plaintiff seeks additional limitations on the pr otective order that would essentially limit defendant from using the IME materials. Of th e several limitations a dvanced by plaintiff none reach a “good cause” level to issue an additiona l protective order and the additional protective order goes beyond what is necessary to protect pl aintiff’s privacy concer ns. Plaintiff requests that the IME materials not be released to the Criminal Division or the Offices of Professional Responsibility or Public Integrity of the DOJ. (P l.’s Cross-Mot. for a Protective Order at 2-3.) Defendant does not foresee the need at this time to share the materials with these departments but cannot limit itself to that request in the rare cas e that these departments would become necessary in the litigation. (Def.’s Opp’n to Pl.’s Mot. fo r a Protective Order at 4.) Plaintiff attempts to bar defense counsel from maintaining any of th e IME materials in electronic format. (Pl.’s Cross-Mot. for a Protective Order at 7.) This would greatly burden defendant from effectively litigating this case as attorneys would be unable to share draft briefs electronically. (Def.’s Opp’n to Pl.’s Mot. for a Protectiv e Order at 4-5.) Plaintiff also requests that the new protective order deny defense counsel a right to have its own copy of the audio r ecording. (Pl.’s CrossMot. for a Protective Order at 5-7.) This too would reduce the ability of defense counsel to effectively litigate this case, adding an additiona l burden and expense to the defense. (Def.’s Opp’n to Pl.’s Mot. for a Protectiv e Order at 2-3 (noting that the defendant would have to pay the

1 “IME Materials” will be defined as “all information disclosed by Plaintiff during the IME and any information the doctor used in the IME. ‘IME Materials’ shall also include all documents prepared directly or indirectly as a result of the IME including, but not limited to, all notes and email correspondence concerning or discussing the IME or any information disclosed therein, any reports prepared by the doctor conducting the IME, any and all work product related to such reports, the full content and results of all psychological examinations and tests, all test materials, and all oral and written communications between Plaintiff and the doctor.” (Pl.’s Opp’n to Def.’s Mot. for IME and Cross-Mot. for a Protective Order Ex. 1 ¶ 1.)4 doctor every time they wished to view the audi o recording while plain tiff would have his own copy).) II. Defendant’s Limitations Defendant advances that it is unable to dest roy materials within 30 days of the conclusion of the litigation, claiming it may violate th e Federal Records Act (“FRA”) and/or DOJ Regulations, depending on how the materials are used. (Def.’s Opp’n to Pl.’s Mot. for a Protective Order at 7-9.) However, as plaintiff points out, the orig inal protective or der issued in this case [44], already includes su ch a provision. (Pl.’s Cross-Mot. for a Protective Order at 8.) Further, the IME materials most likely would not fall under the FRA’s definition of “record.” Therefore, the defendant must destroy all protec ted evidence subject to ¶ 6 of the original protective order [44]. III. The IME will be Audio Recorded Plaintiff has agreed to the recording of the IME subject to the additi onal protective order. (Pl.’s Cross-Mot. for a Protectiv e Order at 3.) Although the law permits the audio recording of IMEs, see Doe v. District of Columbia , 2005 WL 3828731, at *1 (D .D.C. Aug. 15, 2005) (allowing plaintiff’s IME to be videotaped); see also T.B. v. Chico Unified School District , 2009 WL 837468, at *1-3 (E.D. Cal. March 26, 2009), the request to videotape IMEs has also been denied in this Court. See Abdulwali v. Washington Metro Are Transit Authority , 193 F.R.D. 10, 14 (D.D.C. 2000). However, despite plaintiff’s concerns, the IME may still be audio recorded without an additional protective order. The doc tor, Dr. Blackmon, performing the IME in this case has specifically requested that the examinati on be videotaped or otherwise recorded so that he may focus on the examination itself and also ha ve an accurate record of what occurred during5 the examination. (Def.’s Mot. for IME Ex. 18 ¶¶ 5-6.) The Court finds it reasonable that the IME is audio recorded. CONCLUSION The results of the IME are sufficiently pr otected by the Protective Order previously issued by the Court. Therefore, no additional protective order is needed and plaintiff’s motion is
DENIED. SO ORDERED. Signed by Royce C. Lamberth, Chief Judge, on November 12, 2009.