Brandt v. The Federal Reserve Bank of San Francisco

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 KATHERINE BRANDT, CASE NO. 2:25-cv-01811-JHC 8 Plaintiff, ORDER 9 v. 10 THE FEDERAL RESERVE BANK OF SAN 11 FRANCISCO, 12 Defendant. 13 14 I 15 INTRODUCTION 16 This matter comes before the Court on Plaintiff’s Opposed Motion for Entry of Protective 17 and ESI Orders. Dkt. # 30. The Court has considered the materials filed in support of and in 18 opposition to the motion, pertinent portions of the record, and the applicable law. Being fully 19 advised, for the reasons below, the Court GRANTS Plaintiff’s motion in part and DENIES it in 20 part. 21 II 22 BACKGROUND 23 Plaintiff brings several employment and whistleblower claims against Defendant, her 24 former employer. See generally Dkt. # 1. Despite conferring on February 2, 2026, and 1 exchanging drafts through March, the parties have failed to agree on terms for a protective order 2 (PO) and an order concerning electronically stored information (ESI). Dkt. # 30 at 4. They now 3 seek entry of their proposed versions of those orders. See Dkt. # 30 (Plaintiff’s motion and 4 proposed PO and ESI order); Dkt. # 32 (Defendant’s response, including proposed PO and ESI 5 order). 6 III DISCUSSION 7 In this District, litigants “are encouraged to use” the model PO and model ESI protocol. 8 See LCR 26(c)(2). Under Federal Rule of Civil Procedure 26(c), the Court has broad latitude to 9 grant protective orders and manage discovery disputes, extending to the entry of POs and ESI 10 Protocols. See Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1211–12 11 (9th Cir. 2002); see also Crosby v. Amazon.com, Inc., 2022 WL 522953, at *1 (W.D. Wash. Feb. 12 22, 2022) (“[b]ecause the parties are unable to come to an agreement regarding all terms 13 contained within an ESI discovery agreement, the Court will, in its discretion, assist the parties in 14 doing so.”). 15 A. The Parties’ Proposed Orders 16 Plaintiff’s proposed PO differs from the model order in mandating the use of a privilege 17 log. See Dkt. # 30-2 at 9 (§ 4.4). She argues that additional privilege log requirements are 18 necessary, since the ability of Defendant, who will do most of the document production in this 19 case, to withhold information “without disclosing details of information withheld sufficient to 20 enable an informed challenge . . . benefits Defendant and (in Plaintiff’s opinion) prejudices 21 Plaintiff.” Dkt. # 30 at 7. Outside the expanded privilege log, she also seeks the following 22 changes: (1) a provision obligating Defendant to obtain authorizations from the Board of 23 Governors of the Federal Reserve System to release confidential information (Dkt. # 30-2 at 3– 24 1 4); (2) a prohibition of Defendant’s in-house counsel from retaining copies of litigation 2 documents after the litigation (id. at 12); and (3) six “miscellaneous” provisions (id. at 13). See 3 Dkt. # 30-2. With respect to the ESI order, Plaintiff deletes the model’s section on privilege, 4 including the integrated Federal Rule of Evidence 502(d) provision permitting clawbacks for 5 inadvertently produced ESI, and inserts a references to her proposed PO for provisions regarding 6 privilege (which does contain an FRE 502(d) provision). Dkt. # 30-4 at 9–10. She also removes 7 the proportionality element of the model’s Section D, offering that ESI “should be afforded the 8 broadest possibly definition.” Id. at 7. Her proposed ESI order also appears to require 9 Defendants to provide her a “detailed description” of information in custodial and non-custodial 10 data sources within 30 days of the Court’s entry of an ESI order. Dkt. # 30-4 at 2. 11 Defendant, by contrast, proposes a PO and ESI order largely similar to the model PO and 12 model ESI protocol used in this District, except that it foregoes the optional provision in the ESI 13 protocol (Section C, paragraph 2, subsection c) regarding network design and access for 14 “legitimate cybersecurity concerns.” Dkt. # 32 at 10. 15 B. Protective Order 16 Plaintiff’s proposed PO lacks justification. The argument section of her motion cites no 17 authority supporting her proposed changes to the model PO. She seeks to expand the typical 18 privilege log requirements, obligating the producing party to, for example, “describ[e] with 19 specificity the information or documents being withheld (i.e., the title and description of the 20 document, number of pages, the subject matter addressed in the document, [and] identity and 21 position of its author(s).” Dkt. # 30-2 at 9. But Plaintiff offers no examples from other 22 whistleblower or employment cases where courts ordered the use of such an expanded privilege 23 log. Nor does the Court otherwise see why an expanded privilege log is justified here. She 24 offers a generic reason for including one, which is that, since “production is anticipated to be 1 primarily by Defendant as Defendant has nearly all potentially relevant, responsive information 2 within its access, possession, custody, or control,” a privilege log is justified. Dkt. # 30 at 6. But 3 this is true of most cases between individual plaintiffs and corporate defendants, and Plaintiff 4 offers no other reason why such an expanded privilege log should be included here. The Court 5 also finds that the three other substantive changes to the model PO lack justification for the 6 reasons presented by Defendant in its response. See Dkt. # 32 at 7–8. Thus, the Court orders the 7 entry of Defendant’s proposed PO. 8 C. ESI Order 9 Plaintiff’s proposed ESI order also lacks justification. As with her proposed PO, she cites 10 no authority justifying her proposed changes to the model ESI order. The Court agrees with 11 Defendant that Plaintiff’s changes ignore the concept of proportionality required by Rule 12 26(b)(1), which entitles party to non-privileged, relevant discovery “proportional to the needs of 13 the case[.]” Fed. R. Civ. P. 26(b)(1). Plaintiff cites no authority justifying a departure from this 14 standard, nor does she try to explain that departure. And the Court agrees that her proposal 15 obligating Defendant to provide a log of information in custodial and non-custodial data sources 16 would lead to an unworkable and burdensome process. 17 On the other hand, Defendant has not explained its bare assertion that it possesses 18 “legitimate cybersecurity concerns” regarding the optional provision in the model ESI protocol. 19 For the same reasons, the Court orders the parties to include that optional provision in their ESI 20 order, in the absence of a showing by Defendant that such a provision is improper. Thus, the 21 Court orders the entry of Defendant’s proposed ESI order, except that it will contain Section C, 22 paragraph 2, subsection c of the model ESI protocol. 23 // 24 // 1 IV 5 CONCLUSION 3 In accordance with the foregoing, the Court ORDERS as follows: 4 On or before May 27, 2026, the parties shall jointly submit in a stipulated motion: 5 e Defendant’s proposal derived from the model PO; and 6 e Defendant’s proposal derived from the model ESI order, except that it shall contain 7 the language currently at Section C, paragraph 2, subsection c of the model ESI 8 protocol. 9 10 Dated this 13th day of May, 2026. 11 12 Job. 4. Chan John H. Chun 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24