UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________ ) GARY J. AGUIRRE, ) ) Plaintiff, ) ) v. ) Civil Action No. 08-1503 (ESH) ) MARY L. SHAPIRO, ) Chairman, Securities and Exchange ) Commission, ) ) Defendant. ) __________________________________________)

MEMORANDUM ORDER

Before the Court is defendant’s Motion For Protective Order and Motion to Stay October 5, 2009 Order Until Entry of Protective Order (“Def.’s Mot.”). For the reasons stated herein, the Court will grant defendant’s motion for a protecti ve order in part and will deny defendant’s motion for a stay as moot. During an October 2, 2009 conference call, th e Court ordered the parties to complete

initial disclosures on or before December 1, 2009. Prior to th at date defendant proposed a protective order pertaining to documents it planned to produce. (Pl.’s Mem. in Opp’n to Def.’s Mot. for Protective Order and Mot. to Stay Oc t. 5, 2009 Order Until Entry of Protective Order [“Pl.’s Opp’n”] at 1.) Plaintiff agreed to the en try of a protective order and the majority of the terms proposed by defendant, but the parties di sagreed as to a number of issues. ( Id. ) Further briefing led to concessions by both parties, leav ing four issues for th e Court to decide.2 1. Invocation of Securities Laws and Regulations

Plaintiff maintains that defendant’s in troduction to its proposed protective order unnecessarily designates documents as “protect ed by the Securities Act of 1933” and other securities statutes and regulations , thereby raising concerns that de fendant is threatening plaintiff with criminal sanctions. (Pl.’s Opp’n at 2-3.) Plaintiff argues that such language has a “chilling effect” on his free speech and improperly limits his ab ility to speak with the media and Congress. ( Id. at 3.) Defendant responds that such langua ge is necessary to protect the “names of individuals and companies under in vestigation, strategic decisions, and . . . work performed [by the Securities and Exchange Commission (“SEC” )].” (Def.’s Reply at 4-5.) To address defendant’s concern, plain tiff states that he will agree to “redact from any document he provides to Congress all personal informa tion regarding [third party] a pplicants, including their name, address, phone number, and social security numbe r,” as well as “any reference to or description of [internal applicants’] work while employed by the SEC.” (Pl.’s Notice of Filing of Revised Proposed Protective Order [“Pl.’ s Sur-Reply”] at 2, 3.) There is “no First Amendment right of acce ss to information made available only for purposes of trying [a] lawsuit.” Seattle Times v. Rhinehart , 467 U.S. 20, 32 (1984). As such, plaintiff has no First Amendment right to discuss or share protected information he receives as a function of pretrial discovery, al though nothing in the order restri cts him from disseminating that

same information if he obtains it outside of the discovery process. However, the Court disagrees with defendant’s argument that “[w]ithout a protective order that specifically invokes the

relevant securities laws . . . that information cannot be di sclosed to plaintiff and could impede efficient resolution of this case.” (Def.’s Repl y at 5.) The terms of the protective order, including when and how plaintiff is permitted to use information designated as protected, do not3 change if the language at issu e is removed from th e introduction. Moreover, if information disclosed by defendant to plain tiff is independently protected by securities laws and regulations, those protections apply irrespective of any reference to those stat utes in the protective order. Nothing prevents the government from enforcing those restrictions in th e event of plaintiff’s

unauthorized disclosure of information. As such, the protective order will not include defendant’s proposed introductory la nguage regarding applicable secu rities laws and regulations.

2. Description of Protected Documents Plaintiff disagrees with defe ndant’s proposed language stati ng that material protected by the order “may include . . . inform ation, including the identity of th ird parties, the disclosure of which would be likely to expose a party or person to annoyance, embarrassment or oppression,

as such terms are used in S ection 26(c) of the Federal Rules of Civil Procedure and cases construing that provision; and nonpublic inform ation regarding Commissi on investigations or

other internal Commission matters.” (Pl.’s Opp’n at 3-4.) Plain tiff maintains that such language goes “well beyond the letter or spirit of the authorities the SEC cite s,” is overly broad, and would restrict Plaintiff’s right to speak and his c ounsel’s right to addre ss the Court during oral argument. ( Id. at 4.) Defendant responds that this language simply “acknowledges the potential scope of protected information.” (Def.’s Reply at 5-6.) The Court disagrees with plai ntiff’s assertion th at the language proposed by defendant would restrict his right to speak or his couns el’s right to address the Court, as proposed paragraph 4(a) makes clear that information pr otected by the order may be communicated to and

discussed with “the Court and its Clerk and ot her support personnel.” Ho wever, the language at issue simply identifies information that “may” be protected by the order, not information that is always protected. Regardless of whether such lan guage is included in the order, the government4 can designate as protected any information it wishes, and plaintiff may challenge those designations if he chooses. Because removing this language from the order does not prevent defendant from designating the types of informati on described as protected or change plaintiff’s obligations regarding information so designated, the Court will not include it in the order.

3. Vacation of Restrictions by Designating Party Plaintiff takes issue with defendant’s propos ed language suggesting that “[a]ny specific part or parts of the restrictions imposed by this protective order may be terminated at any time by a letter from counsel for the designating party or by an Order of the Court,” arguing that it “allows the SEC unilaterally to terminate ‘restric tions’ imposed by the Court’s Order rather than to withdraw its own designation of particular documents as ‘protect ed.’” (Pl.’s Opp’n at 6-7.) However, the language at issue appears to apply equally to both parties, permitting a party that designates information as protected to lessen the restrictions on its use, not add to them. No party would have the ability to remove restrictions from information that the other party designates as confidential. Give n that the language provides both pa rties with the flexibility to resolve potential disputes without Court involvement, the Court wi ll include the language in the

order.

4. Congressional Disclosure Plaintiff proposes additional language in the order allowing him to disclose otherwise “protected” information to members of Congress or their staff. (Pl. ’s Opp’n at 7.) He contends that such language is necessary to protect his First Amendment rights as well as his right to petition Congress under the Lloyd-Lafo llette Act, 5 U.S.C. § 7211. ( Id. ) He argues that defendant’s proposed order would “prohibit” his communications with Congress. ( Id. at 8.)5 Defendant responds that this type of provision is not standard and risks disclosure of confidential third party information. (Def.’s Reply at 3-4.) Defe ndant also notes that there is no pending congressional inquiry into plain tiff’s non-selection claim, and that if Congressional interest in plaintiff’s claims develops, members of C ongress can request documents from defendant directly. ( Id. at 4.) Plaintiff concedes that third-party information s hould be protected and states that he will agree to “redact from any document he provides to Congress all personal information regarding [third party] appli cants, including their name, addr ess, phone number, and social security number” as well as “any reference to or description of [internal applicants’] work while employed by the SEC.” (Pl.’s Sur-Reply at 2-3.) In deciding whether to restrict the use of information obtai ned during pretrial discovery, the Court must determine that there is “good cause” to do so. E.E.O.C. v. Nat’l Children’s Ctr. , Inc. , 98 F.3d 1406, 1411 (D.C. Cir. 1996). Here, th e Court finds that the defendant has demonstrated that good cause exists for restric ting the use of discovery—namely, the protection of privacy and proprietary interest s of the parties as well as third- party individuals. (Def.’s Mot. at 2.) Plaintiff, who has not ev en seen the discovery materials he seeks to disclose, has proffered no reason that he should be able to divulge pot entially sensitive information not only to members of Congress, but also to their staff. Nothing in defendant’s proposed order impedes plaintiff’s ability to communicate with memb ers of Congress and provide them with information that does not fall within the scope of the protective orde r. Accordingly, the Court will not include plaintiff’s proposed paragraph 13 in the protective order.6 CONCLUSION

For the reasons discussed a bove, the Court grants defenda nt’s motion for a protective order in part. The parties are ordered to jointly submit to the Court a pr otective order consistent with the Court’s determinations forthwith by December 30, 2009. The status hearing previously scheduled for January 8, 2010, is vacated, and a ne w status conference is scheduled for January 14, 2010, at 10:00 a.m. On or before January 7, 2010, the parties shall jo intly submit a proposed scheduling order, including dates for the exchange of initial disclosures and the filing of an amended complaint, similar to the outdated Order issued by the Court on October 5, 2009.

_________/s/______________ ELLEN SEGAL HUVELLE United States District Judge

DATE: December 22, 2009