UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

____________________________________ ) NATIONAL LABOR REL ATIONS ) BOARD, ) ) P etitioner , )

) v. ) Misc. Ac tion No. 07-549 (JM F ) ) JACK SON HOS P ITAL CORP., dba ) KENTUCK

Y RIVER MEDICA L ) CENTER, ) ) Respondent. ) ) MEMORAN DUM OP INION On J une 10, 2009, I

enter ed a pr oposed protec tive order and dire cted the pa

rties to show
cause why

it should not g o into effe ct. The N ational L abor Rela tions Boar d (“N L RB”) objected to the order

and soug ht a number of

chang es. Jackson Hospital d/b/a Kentucky River Medica l Center ( “KRMC”) disputed the N L RB’s pr oposal and, takingtheir ar g uments into consideration, Ihave r evised the pr otective or der a s follows: 1. Iag ree that there was a cler ical er

ror in par ag raph thre e, and I have c orre cted that
err or. 2. NL RB ar g ues that the sec tion of para g raph 5( c) tha t forbids the use of

confide ntial documents in court pr ocee dings or depositions without prior consent is unduly burdensome be cause it would require N L RB to desig nate a ll of the documents that
are cover ed by

the protec tive order . NL RB also a rgues that KRMC, under the order , could wait until the deposition commence d to object to the use ofconfide ntial documents, which would re quire e ither terminating the depositions or seekingimmediate re lief fr om the Court. KRMC arg ues that re moving the provision would rende r the prote ctive orde r mea ningle ss beca

use depositions are publicly filed docume nts and court pr ocee dings a re public a s well. Ihave amende d the orde r to provide that no c onfidential mater ial shall be filed publicly
. In addition, Iwill permit the parties to question witnesses a bout confidential documents, but the portion of the de position t ransc ript dealingwith those documents will be sea led. Any rema ining issues pe rtainingto the use of documents that ar e desig nated a s confidential at trial can be better r esolved throug h motions i n limine. Deadlines for the filing of such motions will be established by

a pre -trial orde r. 3. The prote ctive orde r I provided states that witnesses ca nnot be questioned a

bout confide ntial documents unless they have be en provide d with a copy of the protec tive order

and agree d in writing, by signing the ce rtification, to abide by its terms. NL RB ar g ues that KRMC should bear the bur den of e nsuring that its former employ ees sig n the ce rtification, or, a lternatively , Ishould dispense with the ce rtification re quirement e ntirely . Idisag ree with NL RB that the c ertification require ment should be remove d, and I also ag ree with KRMC t hat they should not be re quired to for ce pe rsons that they are no longe r af

filiated with to sign the
cer tification. Instead, NL RB may prese nt the cer

tification to deponents if it intends to ex amine the de ponent about a doc ument subject to the protec tive order
. I f the de ponent re fuses to be bound by the protec tive order , the deposition may
2otherwise g o forwa rd but the depone nt may

not be aske d about the docume nt. The pa rties may raise the issue with the Court. I n the eve nt it is nece ssary Imay allow the par

ties to reopen the deposition of any witnesses who re fuse to sig n the
cer tification afte r I

have ha d a cha

nce to a ddress a

ny objection. 4. Finally , the NL RB propose d some additional languag e re g arding the Fr eedom of Information Ac t (“F OIA”) . KRMC argues that the a dditional langua g e is not
nece ssary , and, since the lang uag e wa s intended to protec t KRMC and I have alre ady permitted KRMC to redac t the secr et information it seeks to prote ct, I decline the NL RB’s r equest to alter the provisions pertainingto the FOIA. An amende d Protective Or der a ccompa nies this Memorandum Opinion.
Dated: July

22, 2009 /S/ J OHN M. F ACCI OLA U.S. MAGI STRATE J UDGE

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