*1 This matter is before the Master pursuant to the Order Appointing Master for Discovery dated August 11, 2020 [#74]. The Magistrate Judge referred the following motions, among others, to the Master:

The Special Master has reviewed the briefing for each of the pending motions as well as the applicable case law and has considered the entire docket, including the deposition transcripts, and the exhibits at issue. Oral argument would not materially assist in the resolution of these motions. For the following reasons, the Special Master GRANTS Defendant Denver Health and Hospital Authority's (“DHHA's or Defendant's”) Motion to Restrict, and the Special Master hereby DENIES Plaintiff's Motion to Withdraw from Stipulated Protective Order.

I. BACKGROUND

On March 13, 2020, the parties in this matter filed a Joint Motion for Entry of Stipulated Protective Order [#31]. In their motion, the parties, through their attorneys, stated that they “agreed to abide by the terms of the attached Protective Order .. ..” They asked that it be made an Order of the Court. The Court complied. On March 17, 2020, the Joint Stipulated Protective Order [#34] (“Protective Order”) was issued by the Court.

The Protective Order provides a process for designating material that a party deems to be confidential or for attorneys’ eyes only. Protective Order, Section E. Likewise, the Protective Order provides a process for challenging the opposing party's confidentiality designation. Protective Order, Section I. The courts recognize the value of blanket protective orders where, in the first instance, the parties themselves (and not the court) police the dissemination of information by designating information entitled to protection as confidential. Gillard v. Boulder Valley School District RE-2, 196 F.R.D. 382 (D.Colo. 2000)

In compliance with the terms of the Protective Order, Defendant designated numerous deposition transcripts and discovery responses as confidential. On July 27, 2020, Plaintiff publicly filed, without restrictions, confidentially-designated deposition transcripts and discovery produced by Defendant. In particular, Plaintiff submitted ten exhibits attached to her Renewed Motion to Compel and Challenge to Defendant's Belated Claim of Attorney/Client Privilege [#55], seven of which had been designated as confidential by Defendant. Defendant claims the documents should have been filed with a level-1 restriction, pursuant to D.C.COLO.LCivR 7.2(b).

Four days later, on July 31, 2020, Plaintiff filed her Response to Defendant's Motion for Sanctions [#62], again attaching, without restriction, deposition transcripts that had been designated by Defendant as confidential [#62-1]. This was a duplicate of a designated-confidential deposition transcript Plaintiff had filed without restriction on July 27, 2020, and which the Court had already instructed (in a Minute Order [#61]) was protected and should be filed with restricted status.

*2 In each of the above two instances, Defendant reacted quickly by filing -- on the same day that designated-confidential documents were publicly filed -- Emergency Motions to Temporarily Restrict the exhibits that it had designated as confidential. See Emergency Motion to Temporarily Restrict [#57], filed on July 27, 2020, and Emergency Motion to Temporarily Restrict [#63], filed on July 31, 2020.

Plaintiff filed a Response to each of these Motions [#59] and [#64]. In her Response [#59] to Defendant's first Motion to Restrict [#57], Plaintiff noted that on May 4, 2020, Defendant disclosed “several hundred pages of documents” in response to her Second Set of Written Discovery, several of which were marked as “confidential” or “highly confidential.” The Protective Order provides a process for Plaintiff to challenge the Defendant's confidentiality designations. Protective Order, Section I. No evidence was presented that the parties followed the agreed-upon procedures to challenge and then defend the confidentiality designations to a resolution prior to July 27, 2020. In her Response [#59], Plaintiff claims, p. 6, that D.C.COLO.LCivR 7.2 allows her to file pleadings publicly, despite Defendant's designations of confidentiality pursuant to the Protective Order. She claims that Local Rule 7.2(c) allows her to publicly file documents, and puts the burden on Defendant to overcome a “presumption” of public access. Plaintiff states: “The existence of a SPO [Protective Order] between the parties is NOT ENOUGH to overcome this presumption [of public access]” (emphasis in Plaintiff's original Response [#59, p. 6]).

In her Response [#64] to Defendant's Second Motion to Restrict, Plaintiff claims that Defendant had filed the designated-confidential deposition transcript of Jill Damman without restrictions in its Motion for Sanctions against Plaintiff's counsel [#53], and therefore could not complain about Plaintiff's filing the same document as an exhibit with unrestricted access. A review of the Motion for Sanctions, Exhibit 1 [#53-1], however, shows that the Defendant's Exhibit #53-1 is redacted.

The Court issued two Minute Orders [#61] and [#68], granting Defendant's requests and placed the Plaintiff's publicly-filed documents under restriction at Level 1:

In the Minute Orders, the Court held that the restriction on public access to the documents there ordered would be lifted unless Defendant followed through with filing a Motion to Restrict pursuant to D.C.COLO.LCivR 7.2. The burden was placed on the Defendant to show the validity of its confidentiality designations. The Court suggested that the parties “... should strongly consider where redaction may be appropriate instead of full restriction of these documents.”

Defendant filed its Motion to Restrict [#73] in compliance with the Court's Minute Orders [#61, #68]. It conceded that large portions of Plaintiff's Motion to Compel, and deposition transcripts could be available to the public. However, it continued to maintain that certain portions of Plaintiff's publicly-filed documents should not be publicly available. Importantly, Defendant requested that the portions it designated as confidential through its redactions be maintained at level-1 restriction (Motion to Restrict [#73], p. 9, the lowest level of restriction. D.C.COLO.LCivR 7.2(b)). Thus, these portions would be available to the Court and the parties.

*3 Defendant requested the Court permanently restrict access to:

Defendant claimed that the portions of the documents it designated as confidential should be maintained as restricted from public access pursuant to the factors delineated in D.C.COLO.LCivR 7.2(c) for the privacy protection of nonparties to this case.

Plaintiff filed a Partial Objection to Defendant's Motion to Restrict [#75], emphasizing the presumption of public access of documents. She conceded that some of the redactions proposed by Defendant were valid, but contested, by page and line number, other sections that Defendant proposed have access restricted to the Court and the parties.

On August 26, 2020, Defendant filed its Reply in Support of Motion to Restrict [#78]. Plaintiff, apparently incensed by what she claimed was defense counsel's “on-going mendacity” contained in Defendant's pleadings, then filed Plaintiff's Motion to Withdraw from Stipulated Protective Order Due to Defense Abuse [#80]. Defendant filed its Response [#87], objecting to Plaintiff's motion to “withdraw” from the Protective Order entered by this Court on March 17, 2020 [#34]. Plaintiff filed her Reply [#99] on September 30, 2020. The core disagreement between the parties is that Defendant claims it is protecting information about uninvolved third parties from public disclosure. Plaintiff claims that two individuals – Sheila Paukert and Barry Platnick – do not fit within the definition of “non-interested third parties,” and therefore all information relating to them should be accessible to the public.

II. LIMITED RESTRICTION OF DESIGNATED-CONFIDENTIAL DOCUMENTS ATTACHED TO NONDISPOSITIVE DISCOVERY MOTION IS PROPER.

The spirit and purpose of discovery rules, which includes constructing agreed-upon procedures for privacy protections during discovery, are embodied in F.R.E. 1: The federal rules are to be “construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding” (emphasis added). The opposite of that is happening in this case. The purpose of a stipulated protective order “... is to facilitate discovery, not foment distracting disputes.” Stroup v. United Airlines, *6, 2016 WL 7176717, 15-cv-01389-WYD-CBS (D.Colo. September 16, 2016). Nothing in this discovery dispute materially advances the ultimate disposition of this case.

*4 The Protective Order [#34] contains a mechanism to challenge the designation of documents as confidential. This procedure is standard, and has been long-accepted. See e.g., SOLIDFX v. Jeppesen Sanderson, Inc., 2012 WL 2917116, 11-cv-01468-WJM-BNB, *6, (D.Colo. July 16, 2012)(“The better practice ... is for the filing party first to challenge the confidential designation utilizing the procedure required under Gillard”).

According to Defendant, Plaintiff did not challenge Defendant's confidential designations on exhibits 55-5, 55-7, 55-8, 55-10 or DHHA017438 before publicly filing them. Plaintiff does not dispute this allegation. On July 27 and July 31, 2020, these designated-confidential materials were filed with the Court in violation of the Protective Order, H, ¶28: “A party may not file in any public record any Confidential or Attorneys’ Eyes Only Material without written permission from the Producing Party of a Court Order.” Paragraph 29 of the Protective Order instructs the parties as to how they should handle the filing of confidential material “... in any pleading, motion, exhibit or other submission to the Court ... [which] shall be filed as a Level 1 restricted document pursuant to D.C.COLO.L.CivR 7.2.”

Plaintiff's reliance on D.C.COLO.LCivR 7.2, which expresses an overriding policy of allowing public access to all documents, is misplaced. D.C.COLO.LCivR 7.2(a) specifically provides: “Unless restricted by ... court order, the public shall have access to all documents filed with the court and all court proceedings” (emphasis added). In the present case, the Protective Order specifically limited public access to the documents Defendant had designated as confidential.

Plaintiff's actions, violative of her own agreement, triggered a flurry of litigation. The litigation indicates that the parties are so polarized on other issues, they are unable to resolve the handling of “privacy” issues related to filings attached to other discovery motions.

The Protective Order [#34], ¶39, holds that the Court “... is responsible for the interpretation and enforcement of this Order.” Paragraph 28 of the Protective Order is plain: “A Party may not file in any public record any Confidential or Attorneys’ Eyes Only Material without written permission from the Producing Party or a Court Order.” The Special Master finds no Court Order in place allowing Plaintiff to file designated-confidential material with the Court. And nowhere in Plaintiff's three responses addressed at restriction of confidential material [#59, #64, and #75] does Plaintiff show written permission from the Defendant to have publicly filed documents which Defendant had designated as confidential.

Plaintiff apparently assumed that because she could after-the-fact construct an argument for de-designation of confidentiality of some documents, she could safely publicly file confidential documents. The Special Master finds that Plaintiff violated the terms of the Protective Order by publicly filing designated-confidential documents without a court order or written permission to do so, and thereby waived her right to later challenge the propriety of Defendant's confidentiality designations relating to the exhibits publicly filed with her discovery motion. The proper procedure would have been for Plaintiff to have complied with the terms of the Protective Order, filed her exhibits to her motions in redacted form to maintain confidentiality, and then presented her challenge to Defendant first, and ultimately to the Court, if necessary. Plaintiff's after-the-fact request that the Court hold a hearing on confidentiality designations (Response [#59]) does not constitute compliance with the procedures outlined in the Protective Order. Therefore, the Special Master finds that Plaintiff violated the terms of the Protective Order and Defendant's Motion to Restrict is GRANTED.

*5 The Special Master finds that there are alternative grounds to GRANT Defendant's Motion to Restrict. Despite the important right of public access to judicial proceedings, courts have similarly recognized that the public does not have a “strong or compelling interest in access to documents produced between private litigants or in documents submitted to the Court with a nondispositive motion.” See Stroup v. United Airlines, supra at *7, citing Crossfit, Inc. v. Nat'l Strength & Conditioning Ass'n, No. 14 cv 1191-JLS(KSC), 2015 WL 12466532, at *4 (S.D. Cal. Jul. 15, 2015). In the present case, the documents at issue were filed as exhibits attached to nondispositive discovery motions. Therefore, the materials are not subject to the common-law right of access. See Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1312-13 (11th Cir. 2001), cited with approval in Stroup, supra at *8:

Although the background and facts presented in these cases differ from the present situation, the Special Master adopts the reasoning of the Eleventh Circuit. The requested restriction is Level-1, which allows the Court and parties unrestricted access to the exhibits to Plaintiff's discovery motions. Defendant limited the sections that it proposed remained redacted to the public. Discovery rules are in place to facilitate orderly preparation for trial, not to educate or titillate the public. See Burke v. Glans, 11-cv-720-JEF-PJC, 2013 WL 211096 at *4 (N.D. Okla. Jan. 18, 2013), cited with approval in Stroup, supra at *8. Therefore, given the genesis of this dispute, the convoluted and evolving dispute over what lines, pages and sections of documents should be maintained restricted at Level-1, and most importantly, the fact that the document sections in dispute are attached to a non-dispositive discovery motion, Defendant's Motion to Restrict is GRANTED on this basis. This opinion is limited solely to restriction of Plaintiff's Motion to Compel (#55), and the exhibits attached to Plaintiff's Motion to Compel at 55-3, 55-4, 55-5, 55-7, 55-8 and 55-10, as set forth in Defendant's Motion to Restrict (#73], pp. 2-3.

III. PROCEDURE FOR FURTHER CHALLENGES TO CONFIDENTIAL-DESIGNATIONS

This opinion cannot be used by the Defendant hereafter to support a claim that the lines, pages and sections that it claims must be maintained as confidential, with restricted Level-1 access, meet the legal standard of confidentiality for all purposes in this litigation. In total, the parties’ pleadings on confidentiality designations are confusing and non-specific. In its Motion to Restrict, Defendant claims simply that the redactions it employed “... relate to statements about non-parties ..., which raise significant privacy concerns and are, at best, tangentially related to Plaintiff's claims.” Plaintiff's chart in her Partial Objection [#75], pp. 2-3, is offered to “simplify matters,” but is incomprehensible to the Special Master.

The Protective Order, Section I. [#34] provides the process for challenging confidentiality designations. Although it does not appear that Plaintiff used this process, the chart in her Partial Objection [#75] contains a listing of seven pages from two depositions and a portion of one document which Plaintiff agrees were properly designated as confidential. It appears that Plaintiff claims that other deposition pages and portions of documents should not have been designated as confidential. The courts have maintained that designation of a document as confidential does not make it so in the eyes of the court. See Stroup v. United Airlines, supra at *4. These “ ‘consensual protective orders merely delay the inevitable moment when the court will be called upon to determine whether Rule 26(c) protection is deserved, a decision ultimately rooted in whether the proponent demonstrates good cause.’ ” Id., citing In re Estate of Martin Luther King, Jr., Inc. v. CBS, Inc., 184 F.Supp.2d 1353, 1362 (N.D. Ga. 2002).

*6 If either of the parties want the Court to decide, in a page-by-page, and line-by-line analysis, whether Defendant's confidential designations of discovery responses and deposition transcripts are proper and should be maintained at restricted level-1 (or any other restricted level) in this litigation, or whether they should be de-designated as confidential, the parties may obtain such a ruling by submitting to the Court a pleading, whether in chart form or other logical form, jointly prepared and submitted by them. This pleading will contain the following:

Both parties made arguments about confidentiality, but their arguments and responses were nonspecific and inadequate for this Special Master to complete an analysis of specific claims that specific lines or pages should or should not be maintained as confidential. Defendant made a sweeping and generalized claim, without reference to specific documents, that third-party privacy concerns justified its confidentiality designations. Plaintiff offered multiple, shotgun reasons for why designated-confidential exhibits should be made public[2], including:

*7 Plaintiff correctly notes that the burden of proof is on the Defendant to overcome the presumption of public access, recognized by the courts and in the local rules. The above procedure requires both parties to refine their arguments on a page-by-page basis. Additionally, because this document must be submitted by both parties, each will have the opportunity to focus on the details of each confidentially-designated line/section/document and understand the other party's reason for maintaining confidentiality or for challenging confidentiality. Defendant may not use the defense that Plaintiff's challenge is time-barred, Protective Order, ¶30, since the issues concerning confidentiality were initially introduced on almost the same date as confidential documents were publicly filed.

Plaintiff must stop her repeated accusatory and unhelpful arguments that information should be publicly available because Defendant is withholding discoverable information[3], or that Defendant's purportedly illegal actions should be publicly exposed. The Court has not reached any of those conclusions. Examples of arguments that are unhelpful and lack focus on the topic presented to the Court include:

In considering whether and how to continue to pursue resolution of the dispute concerning confidential designations, the parties are urged to consider the analysis provided in Moussouris v. Microsoft Corp., 2018 WL 2017296, 15-cv-1483 JLR, *2 (Apr. 26, 2018 W.D. Wash.). In a similarly-situated case, the Special Master held that there is no privacy interest in simply “not being associated” with Plaintiff's employment, or in “not being associated” with a lawsuit. Annoyance and embarrassment do not constitute a reason for protecting the names of employees involved in plaintiff's employment. However, the Special Master listed specific instances where a harm or privacy interest would be implicated if the identity of an individual was revealed, such as revelation of personal identifying information, or exposing a non-party to the possibility of retaliation. In Moussouris, Defendant's proposed protection of employees used as comparators (acknowledging Plaintiff's argument, but not conceding that Dr. Barry Platnick is a comparator) was granted.

IV. THE STIPULATED PROTECTIVE ORDER AIDS THE DISCOVERY PROCESS AND CANNOT BE RESCINDED.

Plaintiff's Motion to Withdraw from Stipulated Protective Order Due to Defense Abuse (“Motion to Withdraw) [#80] is denied. Defendant has produced information to Plaintiff in reliance on the protections agreed-upon by the parties in the Stipulated Limited Protective Order. Indeed, the Plaintiff acknowledged that some of Defendant's confidential-designations were appropriate. Plaintiff's Partial Objection to Motion to Restrict [#75], p. 3.

Plaintiff uses the Motion to Withdraw, and her Reply in support thereof [#99] as a platform to make arguments unrelated to the dispute over specific privacy concerns and confidentiality-designations. Despite her protests concerning Defendant's alleged misdeeds during the discovery process, Plaintiff has cited no precedent for rescinding a Protective Order. The full record, including Defendant's effort to limit restriction of deposition transcripts to specific page and lines numbers, indicates a good faith effort to comply with the terms of the Protective Order. Plaintiff has not provided sufficient justification for holding that Defendant has so abused the protections allowed it for maintaining confidentiality during the discovery process that the Protective Order itself must be rescinded. Rather, the Special Master orders that if the parties are unable to agree on confidentiality designations, they employ the process they agreed to in the Protective Order to resolve their dispute, and as ordered more fully herein. To the extent it cannot be resolved, the Court may then determine the appropriateness of a confidentiality-designation as presented by the parties on a page-by-page or line-by-line basis.

*8 For the foregoing reasons, and in accordance with the Order Appointing Master for Discovery, #74, IT IS ORDERED as follows:

In its Motion, Defendant withdrew its request that public access to Exhibit [#55-6] be restricted.

In her responses, Plaintiff claims that Defendant used the Protective Order to “thwart relevant discovery.” Plaintiff's Partial Objection to Motion to Restrict [#75], p. 5. The record shows otherwise. For instance, when Plaintiff's counsel took the deposition of third-party witness Vanessa Vargas on June 26, 2020, defense counsel objected to Plaintiff's counsel's use of designated-confidential documents as exhibits with third-party deponent, Ms. Vargas. The deposition continued after Plaintiff suggested, “... I recommend that we.. note your objection and allow the deposition to proceed subject to your objections with respect to materials that you maintain are confidential.” Vargas Depo. Transcript, #55-4, 10:17-20. The transcript shows no instance thereafter where Plaintiff's questioning of Ms. Vargas was curtailed or restricted by Defendant. Plaintiff's claim that Defendant used the Protective Order as a discovery-blocking “tool” is belied by the record.

Plaintiff already has appealed the issue of the discoverability of certain information before the Court in a different set of pleadings.