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FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

[plfName]	)	Case No (LT)
Petitioner	)	[caseNo]
)
v.	)
)
[defName]	)
Respondent	)

PETITIONER’S RESPONSE IN OPPOSITION TO RESPONDENT’S MOTION FOR PROTECTIVE ORDER

Petitioner, [plfName], on this [D] day of [MMM] [YYYY], respectfully asks this Honorable Court to deny ‘[poMotion]’ (hereinafter “That Motion”).

Key Points:

Grounds	Relevant [individual/organization]; 3-part test

Table of Contents:

Context	2nd Page
Response	3rd Page
Certificates	7th Page
Affidavit	8th Page

Background:	Petitioner propounded discovery on a non-party

Problem:	Respondent moved to prohibit all discovery on the non-party

Request:	This Court permits discovery on the non-party

Rule 1.280(c) | Fla. R. Civ. P. | Protective Orders

“When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection."

§120.569(2)(k) | Florida Statutes | Decisions Which Affect Substantial...

“1. Any person subject to a subpoena may, before compliance and on timely petition, request the presiding officer having jurisdiction of the dispute to invalidate the subpoena on the ground that it was not lawfully issued, is unreasonably broad in scope, or requires the production of irrelevant material.”

Precedence

DOAH Case 01-4519	- Case Law (12/21/01)

DOAH Case 06-2115	- Case Law (10/24/06)

DOAH Case 06-4168	- Case Law (5/11/07)

DOAH Case 12-1212	- Case Law (6/29/12)

DOAH Case 17-5067	- Case Law (10/27/17)

DOAH rejected similar motions for protective orders

Abbreviations

[C###]	-	Paragraph ### from The Complaint2/
[M###]	-	Page ### from That Motion3/
[S###]	-	Page ### from The Subpoena4/
USFLMD	-	US District Court, Florida, Middle District

RESPONSE

Substantive Facts

Petitioner sued Respondent for employment discrimination on several bases (under 42 USC §1981, 42 USC §2000, §760 FS, etc.).

The allegations in his complaint that are most pertinent to this discovery dispute involve:

[adverseAct001] ([CXXX]);

[adverseAct002] ([CXXY]); and

[adverseAct003] ([CXXZ]);

[para001]

[para002]

[para003]

Procedural Facts

On [MMMa] [Da], [YYYYa], [plaintiffPropoundedDiscovery].

On [MMMb] [Db], [YYYYb], [defendantMovedToQuash].

[para004]

[para005]

[para006]

Direct Rebuttal

Petitioner hereby reasserts his need to propound discovery on [nonPartyName].

That Motion asked this Court to prohibit discovery on [nonPartyName] altogether; saying the following:

“[defQuote001]”

Conclusory Statements Fall Short

Respondent’s boilerplate objection falls short of the mark. It is well established that generalized objections that discovery requests are vague (or overly broad) are unacceptable; and will be overruled. As said in the following ruling from Auto-Owners vs SE Floating Docks, 231 FRD 426 (MD Fla. 2005) (also see Bank of NY v Meridien Biao Bank, 171 FRD 135, 143 (SDNY 1997); Panola Land Buyer’s Assn. v. Shuman, 762 F.2d 1550, 1559 (11th Cir. 1985)) (emphasis added):

“the party seeking a protective order has the burden to demonstrate good cause, and must make a ‘particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements’ supporting the need for a protective order.”

Rule 1.280(c) Fla. R. Civ. P.

Instead, this Tribunal must be pointed to Rule 1.280(c) Fla. R. Civ. P. for guidance; which says, in pertinent part (emphasis added):

“When a party withholds information otherwise discoverable under these rules... the party shall... enable other parties to assess the applicability of the privilege or protection.”

[para007]

[para008]

[para009]

[para010]:

“[defQuote001]”

[para011]

[para012]

3-Prong Test

The decision in American Standard v Pfizer, 828 F. 2d 734 (Fed. Cir. 1987) created a three-part test for use in reviewing motions for protective orders (emphasis added).

“One seeking a protective order under [Rule 26(c)] must establish that the information sought is confidential... ...Having shown the information sought to be confidential, one seeking a protective order must then demonstrate that disclosure might be harmful... ...[upon satisfying these first two elements], the burden shifts to the party seeking discovery to establish that disclosure of trade secrets and confidential information is relevant and necessary to its case.”

In short, Respondent was required to show that:

it wanted to protect confidential information; and

disclosure of that information would have been harmful;

Then, Petitioner would have the burden of showing that:

the information was relevant to his case

Afterwards, the Court would weigh the need for the information against the potential injury caused by its disclosure.

In the instant case, Respondent cannot claim that [nonPartyName]’s own discoverable information is being held in Respondent’s confidence. Secondly, Respondent never claimed a right to it (see [RXXX]-[RXXX]). Thus, That Motion falls short on the first prong of the analysis.

Notwithstanding, Respondent would not have been able to quench the second element either. Respondent could not – and did not – claim that [nonPartyName]’s involvement in discovery would bring it harm.

Nevertheless, even assuming the burden could somehow shift to Petitioner, he has already articulated the need to involve [nonPartyName] in this lawsuit (see ¶1-7, see Affidavit).

Simply put, [nonPartyName] is inextricably linked to this employment discrimination case. Largely because a jury will need to see the disparate ways in which Respondent treated (a) Petitioner; and (b) different demographic groups.

CONCLUSION

WHEREFORE, Petitioner respectfully asks this Court to deny ‘[poMotion]’.

Dated this [D]th day of [MMM] [YYYY].

Respectfully submitted,

/s/ [plfName]

[plfName], Petitioner

[plfAddy]

P: [plfPhn]

E: [plfEml]

W: TextBookDiscrimination.com

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CERTIFICATE OF COMPLIANCE

I certify that the size and style of type used in this document is Times New Roman 14-point Font (caption) and Courier New 12-point Font (contents); thus complying with the font requirements of Rule 9.210(a)(2) Fla. R. App. P.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this [D] day of [MMM] [YYYY], I electronically filed the foregoing with the Clerk of Courts by using the eALJ system; which will send a notice of electronic filing to the attached service list.

/s/ [plfName]

Endnotes:

1/ The Complaint = “Complaint Against [defName]” (Dkt No. 1).
2/ That Motion = “[poMotion]” (Dkt No. [NN]).
3/ The Subpoena = ‘[issuedSubpoena]’ (Dkt No. [NN]; Exhibit;).

How-To Guide: (interactive)

TextBookDiscrimination.com/Guides/Responses/ProtectiveOrder.html

SERVICE LIST

[defAtt], Esquire ([barNum]) E: [defEml] P: [defPhn] (defendant’s trial lawyers)

PETITIONER’S AFFIDAVIT

FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

[plfName]	)	Case No (LT)
Petitioner	)	[caseNo]
)
v.	)
)
[defName]	)
Respondent	)

PETITIONER’S AFFIDAVIT IN SUPPORT OF PETITIONER’S RESPONSE IN OPPOSITION TO RESPONDENT’S MOTION FOR PROTECTIVE ORDER

The affiant, [plfName], swears or affirms as follows:

Background

I am over the age of eighteen (18).

I am a plaintiff in the above-captioned case.

This affidavit is made in good faith.

Familiarity

I have read DOAH’S Uniform Rules, the Florida Rules of Civil Procedure, and the FCHR’s set of Florida Administrative Codes.

The information in this affidavit is based on my own personal knowledge.

Facts

[pertinentFact001]

[pertinentFact002]

[pertinentFact003]

[pertinentFact004]

[pertinentFact005]

[pertinentFact006]

Verification Under Oath Pursuant to §92.525(1)(c)

Under penalties of perjury, I declare that I have read the foregoing and that the facts stated in it are true to the best of my knowledge and belief.

STATE OF FLORIDA COUNTY OF [countyName]	[D]/[M]/[YYYY]
[plfName], Petitioner/Affiant

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