                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

____________________________________
                                              )
NATIONAL LABOR RELATIONS                      )
BOARD,                                        )
                                              )
                        Petitioner,           )
                                              )
               v.                             )       Misc. Action No. 07-549 (JMF)
                                              )
JACKSON HOSPITAL CORP., dba                   )
KENTUCKY RIVER MEDICAL                        )
CENTER,                                       )
                                              )
                        Respondent.           )
                                              )

                                  MEMORANDUM OPINION

       On June 10, 2009, I entered a proposed protective order and directed the parties to show

cause why it should not go into effect. The National Labor Relations Board (“NLRB”) objected

to the order and sought a number of changes. Jackson Hospital d/b/a Kentucky River Medical

Center (“KRMC”) disputed the NLRB’s proposal and, taking their arguments into consideration,

I have revised the protective order as follows:

       1.      I agree that there was a clerical error in paragraph three, and I have corrected that

               error.

       2.      NLRB argues that the section of paragraph 5(c) that forbids the use of confidential

               documents in court proceedings or depositions without prior consent is unduly

               burdensome because it would require NLRB to designate all of the documents that

               are covered by the protective order. NLRB also argues that KRMC, under the

               order, could wait until the deposition commenced to object to the use of
     confidential documents, which would require either terminating the depositions or

     seeking immediate relief from the Court. KRMC argues that removing the

     provision would render the protective order meaningless because depositions are

     publicly filed documents and court proceedings are public as well. I have

     amended the order to provide that no confidential material shall be filed publicly.

     In addition, I will permit the parties to question witnesses about confidential

     documents, but the portion of the deposition transcript dealing with those

     documents will be sealed. Any remaining issues pertaining to the use of

     documents that are designated as confidential at trial can be better resolved

     through motions in limine. Deadlines for the filing of such motions will be

     established by a pre-trial order.

3.   The protective order I provided states that witnesses cannot be questioned about

     confidential documents unless they have been provided with a copy of the

     protective order and agreed in writing, by signing the certification, to abide by its

     terms. NLRB argues that KRMC should bear the burden of ensuring that its

     former employees sign the certification, or, alternatively, I should dispense with

     the certification requirement entirely. I disagree with NLRB that the certification

     requirement should be removed, and I also agree with KRMC that they should not

     be required to force persons that they are no longer affiliated with to sign the

     certification. Instead, NLRB may present the certification to deponents if it

     intends to examine the deponent about a document subject to the protective order.

     If the deponent refuses to be bound by the protective order, the deposition may


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             otherwise go forward but the deponent may not be asked about the document.

             The parties may raise the issue with the Court. In the event it is necessary I may

             allow the parties to reopen the deposition of any witnesses who refuse to sign the

             certification after I have had a chance to address any objection.

      4.     Finally, the NLRB proposed some additional language regarding the Freedom of

             Information Act (“FOIA”). KRMC argues that the additional language is not

             necessary, and, since the language was intended to protect KRMC and I have

             already permitted KRMC to redact the secret information it seeks to protect, I

             decline the NLRB’s request to alter the provisions pertaining to the FOIA.

      An amended Protective Order accompanies this Memorandum Opinion.



Dated: July 22, 2009                                                 /S/
                                                           JOHN M. FACCIOLA
                                                           U.S. MAGISTRATE JUDGE




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