Free Motion for Protective Order - District Court of Delaware - Delaware

I Case 1 :04-cv-01453-JJF Document 27 Filed 01/18/2006 Page 1 of 4 I
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE A
SSGT. JASON A. ADKINS, USAF, ) C.A. NO.: 04-1453-JJF
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Plaintiff )
)
g v. , ) DEFENDANTS’ MOTION FOR
i ) A PRIVACY ACT PROTECTIVE
DONALD H. RUMSFELD, Secretary of Defense; ) ORDER AND FOR PERMISSION
JAMES G. ROCHE, Secretary of the Air Force; V ) TO FILE FOUR EXHIBITS
GEN. JOHN W. I·IANDY,Commander Air Mobility) IN SUPPORT OF DEFENDANTS’
Command; COL. JOHN I. PRAY, JR., 436th Airlift) MOTION TO DISMISS
Wing Commander, in their official capacities, ) UNDER SEAL
) _ .
Defendants. )
J I _ Pursuant to Fed. R. Civ. P. 26(c) and the Privacy Act of 1974, 5 U.S.C. § 552a(b)(l 1), I I I
defendants, through undersigned counsel, hereby move this Court to authorize the filing under

seal of certain records and to adopt the attached proposed Protective Order so as to permit the use
K in this case of these records and information contained in them that may be Privacy Act-protected I
i and/or otherwise might intrude upon the privacy interests of present or former government I
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employees. Undersigned counsel has sought plaintiffs consent to this motion. Plaintiff opposes
this motion. I I .
i l. In support of defendants’ motion to dismiss, to be filed on January 18, 2006,
J defendants intend to file certain exhibits that are subject to the Privacy Act. Specifically,
defendants intend to file three documents contained in plaintiff s official personnel file and one
i record obtained from the Inspector General of the Air Force}
1In conformity with the guidance provided by the Court for CM/ECF filings involving
sealed exhibits, 5_ee_ Electronic Filing Tips for Attorneys (located on the Court’s Website at
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Case 1:04-cv-01453-JJF Document 27 Filed O1/18/2006 Page 2 of 4
2. The Privacy Act permits defendant to utilize such records pursuant to a court
order. gp 5 U.S.C. § 522a(b)(l1).
3. Fed. R. Civ. P. 26(c) permits the court, for good cause shown, to "make any order
which justice requires to protect a party or person from annoyance, embarrassment, oppression,
or undue burden or expense," including "that . . . the disclosure . . . may be had only on specified
terms and conditions."
4. It is the burden of the party seeking an order to file documents under seal to
T overcome the prestunption of public access to judicial records in civil cases. See Leucadia v.
Applied Extrusion Technologies, 998 F.2d 157, 165 (3d Cir. 1993).
A 5. Prompt entry of an order authorizing the filing of these records under seal and A
5 adopting the attached protective order will further these interests. These records contain Privacy
A Act-protected materials regarding both plaintiff and third parties that are not readily susceptible
? to redaction or other measures of partial protection of this infonnation. The public’s presumptive
l right of access to all materials filed in a civil case is outweighed by the inherently private nature
j of these materials, the privacy interests of third parties, and the continued public access to the
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i vast majority of materials filed in this case. including references and citations to all filed exhibits .
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in defendants’ memorandum of law in support of defendants’ motion to dismiss.
http://uwv\v.dcd.uscourts.gov/CMECF/CMECFMain..htm), defendants will file a single page
` noting just the words "Sealed Document" in lieu of these four exhibits. Defendants will also
serve these exhibits on plaintiffs counsel via First-Class U.S. Mail, postage prepaid. Should the
Court grant permission to file under seal, defendants’ will comply with the instructions for doing
so provided in this Court’s Order, In re: Electronic Case Filing Policies and Procedures, Feb. 8, `
2005. Should the Court deny permission to file under seal, defendants will file these exhibits
electronically under the appropriate docket notation and reference.
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Case 1:04-cv-01453-JJF Document 27 Filed O1/18/2006 Page 3 of 4
Dated: January 18, 2006 Respectfully submitted, p
PETER D. KEISLER l
Of Counsel: Assistant Attorney General
LT COL DONNA MARIE VERCHIO COLM F. CONNOLLY
Staff Judge Advocate United States Attorney
Dover Air Force Base
MAJ CHARLES D. MUSSELMAN, JR. RUDOLPH CONTRERAS
Military Personnel Branch Assistant United States Attorney
General Litigation Division - l Chief, Civil Division
Air Force Legal Services Agency _
A VINCENT M. GARVEY
Deputy Branch Director
JEPFRE . (MI Bar # P65270) e ·
Trial Attorney, Federal Programs Branch
` Civil Division, U.S. Department of Justice
1 P.O. Box 883, 20 Massachusetts Ave., N.W.
Washington, D.C. 20044
Tel: (202) 514-3716
1 Fax: (202) 616-8470
5 je;Efrey.kalin(@,usdo]`.gov
[ Attorneys for Defendants
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I Case 1 :04-cv-01453-JJF Document 27 Filed 01/18/2006 Page -4 of 4
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I CERTIFICATE OF SERVICE
I certify that on January 18, 2006, I electronically filed the foregoing Defendants' Motion for
I a Privacy Act Protective Order and for Permission to File F our Exhibits in Support of
I Defendants’ Motion to Dismiss Under Seal with the Clerk of Court using CM/ECE which will
l send notification of such filing to the following:
, Thomas S. Neuberger
I Email: tS11@1’lGllb€fU:CII9.W.COH1 1 ·
Stephen J. Neuberger I
Email: SJN@_ NeubergerLaw.com
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I > 7»Z_
} JE I .I€AI-IN (MI # P65270)
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