*1 On June 30, 2022, plaintiff Jean-Claude Franchitti (“plaintiff”) filed a Motion (alternatively “Mot.” (ECF No. 301)) for an order modifying the Protective Order entered in this action (ECF No. 63) to permit him to use the discovery materials produced in this case “in a closely-related collateral case now pending in the United States District Court for the District of New Jersey against Defendants, subject to the same restrictions of the Protective Order entered here.” (Mot. at ii). Plaintiff also submitted a Memorandum of Points and Authorities (“MPA”), along with the declaration of his counsel Daniel Kotchen (“Kotchen Decl.”) and exhibits. On July 8, 2022, defendants filed an Opposition (“Opp'n” (ECF No. 325)) to the Motion, along with the declaration of Reid Rector (“Rector Decl.”), counsel for defendants in the New Jersey False Claims Act litigation (“FCA Litigation”), and an exhibit. On July 15, 2022, plaintiff filed his Reply (ECF No. 350), along with an Application (“App.”) to file the Reply under seal because it references two policies and defendants have designated documents referencing and discussing those policies as “Confidential” under the Stipulated Protective Order issued in this action. (ECF No. 347). Plaintiff states that plaintiffs do not believe that the sealing of the policy names meets the “ ‘good cause’ standard for sealing.” (App. at 1). For purposes of this Motion only, plaintiff's Application to seal the Reply (ECF No. 347) is granted.

Having considered the pleadings submitted in connection with the Motion, the Court has concluded that oral argument will not be of material assistance in determining the Motion. Accordingly, the hearing scheduled for August 3, 2022, is ordered off calendar. See Local Rule 7-15.

Background

Plaintiff states that he is also pursuing an FCA qui tam lawsuit against defendants in the District of New Jersey, that was filed in 2017. (MPA at 2). In that suit he alleges that defendants engaged in a “vast visa fraud scheme in order to secure underpaid laborers from India who it can use to staff U.S. projects in lieu of more expensive Americans (and other non-visa holders).” (Id. at 2-3). Plaintiff specifically alleges that in order to maximize profits, defendants (a) submit “fraudulent visa applications and supporting documents to the government in order to secure the maximum number of visas each year, thereby creating an inventory of ‘visa ready’ workers available in India to fill U.S. roles”; (b) apply for cheaper visas for positions and work where more expensive visas are required; and (c) “underpay [their] H-1B visa workers who rightfully should be paid at least as much as their American counterparts in the same roles with similar experience.” (Id. at 3).

Plaintiff notes that in this Central District case, Cognizant has produced “a significant volume of documents regarding Cognizant's practices and policies with respect to its applications for visas and staffing of Indian visa holders in U.S. positions -- documents that are also highly relevant in the qui tam case.” (Id.).

*2 Plaintiff also notes that in the FCA Litigation, two discovery requests have been made concerning discovery from this litigation: (1) Franchitti “issued a subpoena to Vartan Piroumian -- [a plaintiff in this action] who is located within the Central District of California -- requesting the discovery”[1] (id. at 4 (citing Kotchen Decl. Ex. 7)); and (2) Cognizant issued a document request to Franchitti seeking all documents relating to any lawsuits, complaints, charges, administrative actions, and/or other legal proceedings that Franchitti relied upon or referenced related to the allegations set forth in the Complaint or First Amended Complaint in the FCA Litigation. (Id. (citing Kotchen Decl. Ex. 6)). Plaintiff states that defendants objected to the Piroumian subpoena and stated they did not consent to the production of documents pursuant to that subpoena, and no documents have been produced. (Id. at 5; Rector Decl. Ex. 1).

Plaintiff asserts that he “understood [defendants' document] request to be seeking the production of class discovery in the qui tam matter in light of the fact that Mr. Franchitti had read and was familiar with this litigation ... at the time the amended complaint was filed, Mr. Franchitti has referenced this litigation in the qui tam action, and this litigation is ‘related to’ the allegations in the qui tam case.” (Id. at 4 (citing Kotchen Decl. ¶ 4 Ex. 6)). Plaintiff notes that in response to Cognizant's document request he “has thus far produced back to Cognizant class certification materials and deposition transcripts, but has not used these materials in the qui tam case because Cognizant has objected to any of the class documents being used in that case.” (Id. (citing Kotchen Decl. ¶ 4)).

Plaintiff asserts that he has “grave concerns that Cognizant already appears to be taking the same obstructionist approach” in the FCA Litigation as it did in this case, and observes that “16 days after Plaintiffs informed Cognizant that they would file the instant motion to resolve whether the documents produced in this litigation could be used in the qui tam case, Cognizant initiated a discovery dispute process in the qui tam case asking for an order from that court to quash the Piroumian subpoena and disallow Plaintiffs from using the documents produced in this case in that case.” (Id. (citing Kotchen Decl. ¶ 6)).

Defendants respond that the Protective Order in this litigation expressly prohibits the use of materials designated as “Confidential” or “Highly Confidential -- Attorneys' Eyes Only” outside of this litigation. (Opp'n at 1 (citing ECF No. 63)). They assert that plaintiff nevertheless produced “thousands of pages” of Cognizant's protected materials from this litigation in the FCA Litigation, and now “seeks retroactively to redress his violation of the explicit terms of the Stipulated Protective Order by seeking a modification that would permit the wholesale reproduction of documents and transcripts into the FCA Litigation.” (Id.). They contend that plaintiff is thus asking this Court “for permission to transfer more than 640,000 documents and testimony from nine depositions from this case ... without any serious analysis or examination as to whether the documents and other materials are relevant to the FCA Litigation.” (Id. (emphasis in original)). They further contend that granting plaintiff's request “would amount to an unfettered end run around the discovery limits imposed by the Federal Rules of Civil Procedure and by the District of New Jersey, whish has imposed its own discovery limits specific to the FCA Litigation and which would be undermined by the voluminous discovery already taken in this separate case.” (Id.). They submit that plaintiff's attempt to merge discovery between the two matters should not be permitted. (Id.).

*3 Defendants also note that plaintiff “acknowledges that the touchstone of the standard is relevance -- i.e., whether the discovery already taken in this matter [is] relevant to the other litigation.” (Id. at 2 (emphases in original)). They observe that plaintiff made no “concrete argument as to why all of the discovery in the present matter -- an employment discrimination case -- could possibly be relevant in the separate FCA Litigation.” (Id. (emphasis in original)). Defendants further state that plaintiff's failure to identify even a single document or portion of deposition testimony “that would be relevant to the FCA Litigation, ... falls short of showing why he suddenly requires all of the protected and confidential material obtained in discovery from this case to support his allegations in the FCA Litigation.” (Id.). They assert that because they produced “hundreds of thousands of documents and made available several fact witnesses and 30(b)(6) witnesses in reliance on the protections agreed upon in the Stipulated Protective Order, plaintiff “should not be able to disregard this reliance and repurpose discovery from this matter in pursuit of unrelated, legally distinct, claims against Cognizant.” (Id.). Defendants acknowledge that “there could be certain instances where it would be appropriate to share documents between this litigation and the FCA Litigation to avoid duplicative discovery -- for instance, if the discovery is relevant to the FCA Litigation and Franchitti abides by the proper procedures for disclosing these documents.” (Id. at 2-3). They state that they informed plaintiff they are “willing to consider such [disclosure] requests and offered to engage in a discussion to parse through the issue, but Franchitti declined to do so and instead sought court intervention.” (Id. at 3).

The Proposed Modification to the Protective Order

The Stipulated Protective Order in this action provides the following:

(Id. at 4 (emphasis in original) (citing ECF No. 63)). Protected information may be shared if “ordered by the Court or permitted in writing by the Designating Party.” (Id. (citing ECF No. 63)).

Plaintiff requests that the provision be modified as follows:

(Mot. at ii).

Plaintiff explains that the parties agreed to a stipulated protective order in the FCA Litigation “that is nearly identical to the protective order in this case.” (MPA at 2 (citation omitted)). He states that he and his counsel agree that “[t]o the extent any discovery from this case is used in the qui tam matter ... its use will be subject to the same confidentiality provisions contained in the protective orders in both cases.” (Id.). Defendants' discovery request to plaintiff in the FCA Litigation asked plaintiff to produce the following:

(Id. at 5 (citation omitted)). On May 20, 2022, plaintiff “produced material from this litigation in response to the request,” including “hundreds of pages of deposition transcripts and exhibits from this matter -- depositions that were taken after Franchitti filed the amended complaint in the FCA Litigation.” (Id.). Defendants objected to the production of these materials and twice asked plaintiff to withdraw the production and replace it with a production that did not contain materials protected under the Stipulated Protective Order in this action. (Id.). Instead, this Motion followed.

Legal Standard

The Ninth Circuit strongly favors access to discovery materials to meet the needs of parties engaged in collateral litigation. Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1132 (9th Cir. 2003) (citation omitted). Further, allowing the fruits of one litigation to facilitate preparation in other cases advances the interests of judicial economy by avoiding the wasteful duplication of discovery. See Beckman Indus., Inc. v. Int'l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992). Thus, where reasonable restrictions on collateral disclosure will continue to protect an affected party's legitimate interests in privacy, modifying a protective order upon request by collateral litigants so that they are not precluded from obtaining relevant material should generally be granted. Id. (citation omitted). However, a collateral litigant must demonstrate the relevance of the protected discovery to the collateral proceedings and its general discoverability therein. Foltz, 331 F.3d at 1132. As to the relevance inquiry, relevance hinges “on the degree of overlap in facts, parties, and issues between the suit covered by the protective order and the collateral proceedings.” Id. at 1133 (citation omitted) (internal quotation marks omitted). The court should satisfy itself that the protected discovery is sufficiently relevant to the collateral litigation that a substantial amount of duplicative discovery would be avoided by modifying the protective order. Id. (citations omitted). The court must also consider other factors, and weigh the countervailing interests of the party opposing collateral disclosure against the policy of avoiding duplicative discovery. Id. (citation omitted). Other district courts have relied upon Foltz to enter non-sharing protective orders. See, e.g., Kelly v. Provident Life and Accident Ins. Co., 2008 WL 5132851, at *2-3 (S.D. Cal. Dec. 5, 2008); see also Long v. TRW Vehicle Safety Sys. Inc., 2010 WL 1740831, at *1 (D. Ariz. Apr. 29, 2010).

The Parties' Positions

*4 Plaintiff contends that “there is no question about a high ‘degree of overlap in facts, parties, and issues between the suit covered by the protective order and the collateral proceedings.’ ” (MPA at 10 (internal quotation marks omitted)). He supports this statement by noting that both lawsuits “involve the same parties, counsel, and issues relating to Cognizant's visa policies and practices, including its staffing practices concerning visa holders from India.” (Id.). Plaintiff contends that there is significant overlap between the two cases --“namely, Cognizant's use and abuse of the U.S. visa system to secure visas for its South Asians and Indian workforce who it then prefers for U.S. positions to the detriment of non-South Asian applicants and employees alike.” (Id. at 3). As such, he argues, modifying the protective order “would further the goal of judicial economy by not requiring the unnecessary expense and waste of duplication of discovery.” (Id. at 10 (citations omitted)).

Plaintiff also argues that “there is little or no reliance interest on the part of Cognizant.” (Id.). He notes that “the parties agreed to a ‘blanket’ protective order, so the reliance interest is diminished.” (Id. (citing ECF No. 63; Foltz, 331 F.3d at 1133)). He also suggests that because the protective orders in both actions are “nearly identical,” discovery from this matter used in the FCA Litigation “will be governed by the same protective order and confidentiality provisions as they were received here.” (Id.).

Defendants respond that in addition to demonstrating relevance, plaintiff -- as the party seeking modification-- “must show that good cause exists to modify the Stipulated Protective Order because of some changed circumstance, or because prejudice or harm will result if the motion is not granted.” (Opp'n at 6 (emphasis in original) (citing Immunex Corp. v. Sanofi, 2018 WL 11211727, at *2 (C.D. Cal. Jan. 18, 2018))).

They argue that plaintiff fails to demonstrate the relevance of this discovery to the FCA Litigation “because he never specifies the documents that he believes will be relevant to the FCA Litigation.” (Id.). They note that the documents plaintiff produced in the FCA Litigation in violation of the Stipulated Protective Order “evidence [his] attempt to import thousands of pages of wholly irrelevant discovery to the FCA Litigation.” (Id.).

Defendants state that the chart offered by plaintiff (see Mot. at 4) “allegedly showing ‘significant overlap in documents produced in this case that are highly relevant in the qui tam case,’ ... only identifies broad categories of documents that were produced in this matter that could theoretically be relevant to the FCA Litigation” and fails to identify “which of the thousands of pages of discovery adduced in this case is relevant.” (Id. at 7 (quoting U.S. E.E.O.C. v. ABM Indus. Inc., 2013 WL 1455510, at *4 (E.D. Cal. Apr. 9, 2013))). They note that plaintiff's suggestion that because he requested the same type of documents in both cases the documents are in fact relevant to both cases, is a “circuitous argument” that “ignores Franchitti's burden to demonstrate the confidential material in question is relevant to collateral litigation by showing a substantial overlap in the parties, facts, and issues.” (Id. (citing Foltz, 331 F.3d at 1132)). Defendants distinguish the cases cited by plaintiff as cases where the parties identified a limited number of specific documents for which they sought modification of the protective order. (Id. (citing Beckman Indus., 966 F.2d at 471 (six deposition transcripts); Chromadex, Inc. v. Elysium Health, Inc., 535 F. Supp. 3d 906, 910-11 (C.D. Cal. 2021) (specified text messages))). They contrast this to plaintiff's request “for unfettered access to the entire universe of protected documents in this litigation,” and his failure to point to any “specific document that is relevant to the FCA Litigation, let alone demonstrate how the entire universe of documents is relevant.” (Id. at 7-8).

*5 Defendants further deem plaintiff's statements about the alleged “overlap” between the two litigations to be “bare, conclusory statements” that “ignore[ ] the distinctions between the two matters that would make the wholesale transfer of irrelevant discovery ... unnecessary.” (Id. at 8). They observe that the FCA Litigation “implicates the False Claims Act and Cognizant's alleged visa fraud on the government, whereas the allegations in this litigation implicate the Civil Rights Act of 1866, and Title VII of the Civil Rights Act of 1964, and Cognizant's alleged discriminatory employment practices based on race and national origin.” (Id. at 8-9 (citations omitted)). They state that the only allegations in the FCA Litigation that survived the motion to dismiss stage are the following: (1) defendants “improperly applied for thousands of L-1 and B-1 visas in lieu of applying for H-1B visas to perform work for which H-1B visas are required,” thereby depriving the government of the difference in fees between visa types; and (2) defendants failed to pay their H-1B employees a “prevailing wage,” which allegedly “reduc[ed] the amount of federal payroll tax [they] otherwise would have been required to pay.”[2] (Id. at 3-4). As such, they argue, “the evidence needed to prosecute and defend the causes of action will necessarily be different in the two matters.” (Id. at 9). They also argue that the “factual inquiries into the alleged discrimination suffered by Franchitti and the other named plaintiffs ... would have no bearing on whether Cognizant allegedly committed fraud on the government and deprived the government of money through its visa practices in the FCA Litigation.” (Id.).

Additionally, defendants contend that the allegations in the FCA Litigation span from 2012-2016, while the class period in this action runs from September 18, 2013, onward, thus “demonstrating that the wholesale transfer of discovery taken in this litigation would be largely irrelevant to the FCA Litigation.” (Id. (citations omitted)). They suggest that plaintiff is attempting to “blend the discovery in two separate litigation matters and flood the FCA Litigation with fundamentally irrelevant documents in order to circumvent discovery limits in that litigation.” (Id. at 10).

Defendants explain that notwithstanding plaintiff's statement “that he understood th[e] [subject discovery] request [in the FCA Litigation] to be asking for documents from this litigation,” the scope and intent of the subject Request was to “elicit discovery on discrete public disclosure bar issues.” (Id.). They note that many of the documents produced by plaintiff in the FCA Litigation are neither relevant to the FCA Litigation nor responsive to the request. (Id. at 11). Several of the deposition transcripts, for example, were dated “well after” plaintiff filed his amended complaint in the FCA Litigation and he “could not have possibly relied on these materials when he filed the FCA Litigation” in 2017. (Id.).

Defendants also contend that their reliance interest in the Stipulated Protective Order outweighs any potential benefits of avoiding duplicative discovery and that they relied on the Stipulated Protective Order as it is “narrowly tailored and supported by a finding of good cause.” (Id.). They argue that the Protective Order is not a “blanket” protective order and, indeed, specifically “states that it ‘does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principles.’ ” (Id. at 11-12 (emphasis in original)).

The Stipulated Protective Order also specifically provides that “this litigation was likely to involve information for which ‘special protection ... from use or any purpose other than prosecution of this action is warranted.’ ” (Id. at 12 (citation omitted)). Defendants assert that plaintiff “assured Cognizant during a meet and confer in the FCA Litigation that despite [his] role in both this litigation and the FCA Litigation, he would treat the matters as separate matters.” (Id.). They submit that they relied on the terms of the Stipulated Protective Order, and on the promise made by plaintiff to keep the actions separate. (Id.). Thus, defendants contend that even if plaintiff were able to show that the discovery is “sufficiently relevant” to the FCA Litigation, “this is outweighed by Cognizant's reliance interest in the Stipulated Protective Order and representations that were made by Franchitti to treat the litigation matters separately.” (Id. at 6). They state that plaintiff also fails to demonstrate any prejudice he would suffer if the modifications were not granted “because there are other mechanisms that could allow document sharing between the cases.” (Id. at 6-7).

*6 Finally, defendants contend that plaintiff has failed to show that there are changed circumstances that warrant good cause to modify the Protective Order, or that he will suffer specific harm or prejudice if the Motion is not granted. (Id. at 6 (citations omitted)). They state that the FCA Litigation was filed years before the Stipulated Protective Order was entered in this matter, and, when plaintiff entered into the Stipulated Protective Order “he knew he had another lawsuit pending against Cognizant.” (Id. at 13). Defendants assert that plaintiff “already has at his disposal readily available mechanisms that would allow for sharing of protected documents produced in this litigation with the FCA Litigation.” (Id.). For instance, the terms of the Protective Order “allow[ ]the designating party to provide written permission to disclose protected material outside of the litigation,” and defendants have offered to “engage in discussions concerning sharing certain documents, in appropriate instances.” (Id. (citing ECF No. 63)). Defendants also point out that “when recently given the opportunity to negotiate for the sharing of documents between the two cases in discussing the protective order in the FCA Litigation, Franchitti did not do so,” “which seems contrary to [his] sudden need to modify the Stipulated Protective Order here.” (Id. at 13 n.3).

Plaintiff replies that Cognizant has “ignore[d] that this Court need only make a ‘rough estimate of relevance, and satisfy itself that the protected discovery is sufficiently relevant to the collateral litigation that a substantial amount of duplicative discovery will be avoided by modifying the protective order.’ ” (Reply at 1 (quoting In re Dynamic Random Access Memory Antitrust Litig., 2008 WL 4191780, at *2 (N.D. Cal. Sept. 10, 2008) (internal quotation marks omitted))). He notes that in this case plaintiffs allege that defendants “systematically discriminated in favor of South Asians and Indians by fraudulently amassing a large pool of ‘visa ready’ employees in India, and then prioritizing placement of those individuals in U.S. roles to the detriment of non-South Asians and non-Indians residing in the U.S.,” and that these “same staffing program and practices are at issue in the qui tam case,” in which plaintiff alleges that “Cognizant engages in visa fraud so that it can import and employ cheap labor (primarily from India) in the U.S. and avoid having to employ higher-priced Americans.” (Id. at 2-3). He contends that the “primary differences” in the two cases are the legal theories and types of damages. (Id. at 3). He explains that while in this action he seeks to recover damages for non-South Asian and non-Indian applicants and employees “who were either not hired or who were terminated in accordance with Cognizant's fraudulent and discriminatory staffing practices,” in the FCA Litigation he is “seeking to recover losses incurred by the U.S. Government due to that same fraudulent staffing program.” (Id. at 3 n.1).

Plaintiff also takes issue with defendants' contention that the discovery in this case is largely irrelevant in the FCA Litigation because of the differing time periods at issue. He explains that -- contrary to defendants' contention -- in the FCA Litigation he seeks to recover damages “from 2007 onward, so discovery will encompass the entire class period here.” (Id. (emphasis in original) (citing Kotchen Decl. Ex. 4[3])).

Plaintiff contends that “even if there are some irrelevant documents in the class discovery, this is immaterial,” because the focus on a motion to modify a protective order “is whether discovery sharing will prevent significant duplication of discovery.” (Id. at 4-5 (emphasis in original) (citing In re Dynamic, 2008 WL 4191780, at *2)). He also argues that because he and his counsel “already have access to the discovery from this case,” “[i]t would impose an unnecessary and impractical burden to require Mr. Franchitti to demarcate every relevant document from Cognizant's production (over 640,000 documents) at this stage, or to make Mr. Franchitti seek additional permission -- on a piecemeal basis -- every time his counsel identified another document from the class case relevant to an issue in the qui tam case.” (Id. (emphasis in original)). He suggests that this procedure “would inevitably lead to countless discovery disputes to be resolved by this Court over the relevance of individual documents to the qui tam matter.” (Id.).

*7 Plaintiff also argues that “modifying the protective order would promote full and fair disclosure of the evidence of Cognizant's conduct at issue in the qui tam case.” (Id. at 7 (citations omitted)). He argues that the benefits of allowing the discovery materials to be used in both actions outweigh defendants' “claimed ‘reliance’ interest,” which he deems to be “marginal at best.” (Id. at 8). He further counters that the Protective Order is a “blanket” order because the parties are not required to make a good cause showing to the Court before designating materials as confidential or highly confidential. (Id. (citations omitted)).

Plaintiff further notes that he is the only “collateral litigant” seeking permission to use the protected materials, and his agreement to be bound by the restrictions of the parallel protective orders in both cases “undercuts any legitimate ‘reliance’ interest Cognizant may have had when producing the documents.” (Id. at 9 (citations omitted)). He states that courts have routinely rejected defendants' argument that plaintiff is attempting to do an “unfettered end run” around the limits imposed by the Federal Rules of Civil Procedure and by the District of New Jersey, in part on the ground that this Court will not be making any ruling that the disputed materials are admissible in the other action. (Id. (citations omitted)).

Plaintiff further contends that showing that there is some change of circumstances “is ‘not part of the Foltz test.’ ” (Id. at 10 (citation omitted)). He explains that the Protective Order in this action was agreed upon and entered before Mr. Franchitti became a party and, at that time, his qui tam case was still sealed so he “could not even suggest the existence of that lawsuit when they agreed to the protective order on behalf of other Plaintiffs.” (Id. (citations omitted)). And, when he joined this lawsuit in January 2021, defendants' motion to dismiss and motion to stay discovery were pending before the court in the FCA Litigation, “so [he] had no need to seek modification at that time.”[4] (Id.).

Plaintiff concludes that defendants' claim that he already violated the Stipulated Protective Order and is retroactively seeking redress through this Motion, “is a baseless attack that only underscores how unworkable it would be to expect Mr. Franchitti to rely on Cognizant's voluntary cooperation for using discovery from this case in the qui tam lawsuit.” (Id.). He submits that he did not violate the Stipulated Protective Order “in letter or spirit,” as the Stipulated Protective Order “permits Plaintiffs to provide Cognizant's confidential information back to Cognizant, and to Cognizant's ‘Outside Counsel,’ as the Parties have done repeatedly throughout this case,” and also “permits disclosure where ‘permitted in writing by the Designated Party.’ ” (Id. at 11 (citing ECF No. 63 §§ 2.10, 7.2)). Plaintiff claims, therefore, that his production of defendants' documents back to the attorneys who are representing defendants in this case and in the FCA Litigation, “did not run afoul of the Stipulated Protective Order because: (1) Gibson Dunn is representing Cognizant in both cases; and (2) Mr. Franchitti understood Cognizant's discovery request to provide written permission to make the disclosure of documents back to Cognizant.” (Id.).

Analysis

While this Court is all in favor of avoiding wasteful duplication of costs and efforts in discovery, the Court is troubled by several issues.

*8 First, plaintiff produced “thousands of pages of Cognizant's protected material from this litigation” in the FCA Litigation without first obtaining written permission from defendants to do so, as required by the terms of the Protective Order entered in this action. Plaintiff's “explanations” for this action -- that he was merely providing defendants' confidential information back to them, and that he interpreted defendants' request for production in the FCA Litigation to constitute “written permission” to produce confidential documents produced in this case in another matter -- strain credulity. The document request propounded by defendants, seeking documents from plaintiff, does not come even remotely close to what this Court would reasonably consider to be “written permission” from the designating party under the terms of the Stipulated Protective Order. In short, plaintiff's protestations notwithstanding, the Court finds that he did violate the terms of the Stipulated Protective Order -- both in letter and spirit.

Additionally, the Court disagrees with plaintiff's equally strained contention that the Stipulated Protective Order issued in this action is a “blanket” protective order. In fact, the Stipulated Protective Order itself specifically disavows that it is a “blanket” protective order and provides that the parties are obligated to “take care to limit any [Confidential or Highly Confidential] designation to specific material that qualifies under the appropriate standards.” (ECF No. 63 § 5.1). In contrast, in the cases involving a “blanket” protective order, it generally appears that any document produced in the litigation is per se designated as confidential, without the obligations stated in the Stipulated Protective Order. See, e.g., Foltz, 331 F.3d at 1131 (noting that the district court issued a blanket protective order “forbidding both parties to disclose any information produced in discovery absent permission from the other party” or the court) (emphasis added); Beckman, 996 F.2d at 471 (noting that pursuant to a stipulation, the court “issued a blanket protective order ... keeping all discovery confidential”) (emphasis added).

Finally, the Court finds that in producing confidential and/or highly confidential documents produced in this action to defendants in the FCA Litigation, plaintiff also violated the “letter and spirit” of plaintiff's counsel's alleged agreement to keep the two actions separate -- an agreement he had the opportunity to disavow in the Reply, but did not. Furthermore, a review of the docket for the FCA Litigation reflects that a stipulated protective order was entered in that action on May 20, 2022, containing essentially the same provisions as the Stipulated Protective Order in this case. As defendants noted, it appears that “given the opportunity to negotiate for the sharing of documents between the two cases in discussing the protective order in the FCA Litigation, Franchitti did not do so, which seems contrary to Franchitti's sudden need to modify the Stipulated Protective Order here. (Opp'n at 13 n.3). Indeed, plaintiff provides no explanation as to why that stipulated protective order, which was issued a little more than two months ago, does not include any document sharing provision.

Notwithstanding the foregoing, in determining whether to modify the Stipulated Protective Order, the Court must consider the overlap in facts, parties, and issues between this action and the FCA Litigation. The Court has carefully compared the Third Amended Complaint in this action with the operative First Amended Complaint in the FCA Litigation (taking into consideration the ruling on defendants' motion to dismiss in that action), to determine whether the protected discovery produced in this litigation “is sufficiently relevant to the collateral litigation that a substantial amount of duplicative discovery will be avoided” by modifying the Stipulated Protective Order in this action. See Foltz, 331 F.3d at 1132. As there is no dispute as to the parties being the same, the Court considers only the degree of overlap in facts and issues.

*9 In the FCA Litigation, plaintiff brings one count against defendants -- violation of the False Claims Act. (Mot. Ex. 1 ¶¶ 74-78). Plaintiff alleges generally that defendants have “knowingly presented, or caused to be presented, to employees of the United States, false and fraudulent claims for property or approval [They have] also knowingly made, used, or caused to be made or used, false records or statements material to a false or fraudulent claim.” Specifically, he alleges that defendants' conduct (described by plaintiff as a “vast visa fraud scheme to create a cheap foreign workforce to whom visas have been issued by the U.S. government when the purported jobs or work against which the visas have been issued do not in fact exist,” thereby “relieving Cognizant of the burden of having to hire or staff its client's project with more expensive Americans”[5]) “deprived the government of significant visa application filing fees each time the company improperly applied for an L-1 or B-1 visa for a foreign employee who traveled to the U.S. to perform work for which an H-1B visa should have been sought,” and deprived the government of its interest in “tens of thousands of H-1B, L-1, and B-1 visas” that “should have rightfully been awarded to individuals seeking non-speculative work in the United States.” He also contends that defendants' conduct also deprived the government of “substantial tax revenue because Cognizant consistently underpays its thousands of ... H-1B visa workers utilized in the U.S. each year.”

In this action, plaintiffs allege three claims. First, they allege disparate treatment on the basis of race pursuant to the Civil Rights Act of 1866, based on defendants' “pattern and practice of discriminating against individuals who are not of South Asian Race” by knowingly and intentionally “favoring South Asian individuals in employment decisions,” disfavoring non-South Asian individuals in employment decisions, and creating and maintaining an “overwhelmingly disproportionate workforce in the United States consisting of at least 75% (if not more) South Asian employees.” (Third Am. Compl. ¶¶ 82-84). Second, they allege disparate treatment on the basis of race and national origin pursuant to Title VII of the Civil Rights Act of 1964, as amended, by knowingly and intentionally “favoring South Asian individuals in employment decisions,” disfavoring non-South Asian individuals in employment decisions, and creating and maintaining an “overwhelmingly disproportionate workforce in the United States consisting of at least 75% (if not more) South Asian employees” that denied members of the class employment, the fair opportunity to obtain employment, and fair opportunities with regard to promotion and/or continued employment with Cognizant. (Id. ¶¶ 87-90). Finally, they allege disparate treatment on the basis of race and national origin pursuant to Title VII of the Civil Rights Act of 1964, as amended, with respect to defendants' policies and practices related to hiring, promotion, and termination of individuals, “that have had a disparate impact on the basis of national origin and race (harming those who are not of South Asian race or Indian national origin) that are neither job-related for the positions at issue nor consistent with business necessity.” (Id. ¶¶ 92-94).

While the operative complaint in this action and in the FCA Litigation both discuss defendants' purported underlying visa “scheme,” the Court is not satisfied that the discrimination claims at issue here are sufficiently relevant to the collateral litigation's claims of visa application fraud and wage and tax issues under the False Claims Act such that a substantial amount of duplicative discovery would be avoided by modifying the protective order in this case.

In this action, for instance, while documents relating to the alleged visa “scheme” might provide general “background” for the discrimination alleged by plaintiffs in this action, the vast majority of documents related to class allegations of discrimination and damages stemming therefrom, will be no more than tangentially relevant, if at all, to the False Claim Act allegations in the FCA Litigation, for which plaintiff will attempt to show that defendants committed fraud on the government through its visa applications and payment practices. Although plaintiff asserts that defendants' “scheme” related to its staffing program and practices are at issue in the FCA Litigation, it is not actually the staffing program and practices that are at issue, but defendants' allegedly fraudulent visa application process itself.

*10 Additionally, plaintiff is seeking to modify the Stipulated Protective Order with respect to any documents produced in this action and produced in the FCA Litigation, such that documents produced in either action can be used in the other action -- essentially a “blanket” modification to the Stipulated Protective Order, that also significantly impacts the terms of the stipulated protective order recently issued by the Court in the FCA Litigation. The requested modification would also mean that protected documents produced by non-parties in either action, could also be used in the other action. In light of plaintiff's failure to demonstrate that the universe of documents is sufficiently relevant to the collateral litigation that a substantial amount of duplicative discovery would be avoided by modifying the protective order, this Court declines to make such sweeping modifications to the Stipulated Protective Order.

The Court notes that the FCA Litigation is also in federal court, albeit in another district, but subject to the same Federal Rules of Civil Procedure as in this action. Denying this Motion will not preclude plaintiff from submitting evidence in the FCA Litigation, and does not amount to a “blanket prohibition against the use of any document or testimony discovered in this case that is relevant to the False Claims Act issues in the FCA Litigation.”

Additionally, while plaintiff provides some explanation for the fact that he stipulated to the terms of the Protective Order in this action, knowing that his FCA Litigation is pending, the Court finds that -- while not part of the Foltz test -- he has not provided a persuasive reason to now be permitted to unilaterally modify an agreed-upon provision (that he also agreed to little more than two months ago in the FCA Litigation itself) that is a core feature of the Stipulated Protective Order. The Foltz test was enunciated in a different context, i.e., whether a third party could access material filed with the court under seal, when the underlying litigation had already been settled. Here, litigation is on-going and the rationale for the conditions agreed to in the Stipulated Protective Order have not shifted.

In the circumstances presented in this action, the Foltz test does not mandate modifying the Stipulated Protective Order to permit use of protected discovery produced in these proceedings in collateral proceedings, proceedings that would take place in a different forum, and that were instituted by plaintiff himself.

Plaintiff's Motion to modify the Stipulated Protective Order (ECF No. 301) is denied.

Going Forward

Going forward, the parties and their counsel are expected to demonstrate compliance with the Local Rules, the Federal Rules of Civil Procedure, and the Central District's Civility and Professionalism Guidelines,[6] and to work cooperatively and in good faith to determine, when appropriate, whether written permission to disclose protected material in the FCA Litigation should be sought, or provided, in order to share specific protected documents and avoid duplicative discovery efforts.

IT IS SO ORDERED.