Chapter 3B: Motions for a Protective Order

Nan L. Haynes

Learning Outcomes

    1. Understand:
      1. why and when to file a motion for a protective order;
      2. the relevant procedural rules when making or opposing a motion for a protective order; and
      3. the documents required when making or opposing a motion for a protective order.
    2. Be able to:
      1. apply the relevant procedural rules when making or opposing a motion for a protective order; and
      2. draft the documents required when making or opposing a motion for a protective order.

Introduction

When a party or non-party does not want to produce material in response to a discovery request or subpoena because it is not relevant or not proportional to the needs of the case, or wants to limit the dissemination or use of certain material, they may seek a protective order from the court in which the litigation is pending. Fed. R. Civ. P. 26(c)(1). As with a motion to compel discovery, Rule 26 requires that the “affected parties” first confer (or attempt to confer) in good faith to resolve the issue before filing a motion for a protective order. Id. A court may grant a protective order upon a showing of “good cause” to protect a party or non-party from “annoyance, embarrassment, oppression, or undue burden or expense.” Id. Because Rule 37(a)(5) also applies to the award of expenses related to motions for a protective order per Rule 26(c)(3), carefully consider your litigation strategy before moving for a protective order.

Why Move for a Protective Order

Protective orders can be used to protect a party or non-party from excessive burden or expense in producing requested material. For example, the court might deny requests to produce documents or to disclose information that is irrelevant to the case, not proportional, or unduly burdensome to locate or produce. Fed. R. Civ. P. 26(c)(1)(A). To limit burden or expense, the court may specify terms or discovery methods. Fed. R. Civ. P. 26(c)(1)(B), (C). Protective orders can also limit the disclosure of discoverable material to certain matters or to certain individuals under certain conditions, Fed. R. Civ. P. 26(c)(1)(D)-(H), which may be fashioned as a confidentiality order.[1] The court may order a receiving party not to disclose or disseminate certain confidential or proprietary information. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 31 (1984) (rejecting the argument that “a litigant has an unrestrained right to disseminate information that has been obtained through pretrial discovery”). For example, courts routinely enter confidentiality orders that limit disclosure of trade secrets. Such information must be identified by the disclosing party and is often called “attorneys’ eyes only” (“AEO”) information.

When to Move for a Protective Order

A party or non-party may move for a protective order only after it has in good faith tried to resolve the issue with the party seeking the discovery. See Fed. R. Civ. P. 26(c)(1). Be sure to consult local rules for any additional, specific “meet and confer” requirements. See Fed. R. Civ. P. 16(b)(3)(B)(v) (providing that the court may “direct that before moving for an order relating to discovery, the movant must request a conference with the court”).

Rule 26 does not include a deadline for moving for a protective order. Still, it’s important to be cognizant of the timing because the motion may be denied if made before discovery is sought or after the discovery deadline. See, e.g., Ayers v. Continental Cas. Co., 240 F.R.D. 216, 221-22 (N.D. W. Va. 2007) (denying motion for protective order as untimely when made eight months after defendant served discovery request and two months after response was due). Always consult the Rule 16 scheduling order, local rules, and standing orders for additional requirements.

Procedural Rules

Federal Rule of Civil Procedure 26(c) governs protective orders in federal court and outlines several different actions that the court can take in limiting discovery or setting specific requirements. (See the appendix for links to each state’s rules.) The federal rule provides:

(1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending — or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(A) forbidding the disclosure or discovery;

(B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery;

(C) prescribing a discovery method other than the one selected by the party seeking discovery;

(D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;

(E) designating the persons who may be present while the discovery is conducted;

(F) requiring that a deposition be sealed and opened only on court order;

(G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and

(H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs.

The movant must demonstrate “good cause” for the protective order and identify specifically the “annoyance, embarrassment, oppression, or undue burden or expense” they will suffer if the order is not entered. Fed. R. Civ. P. 26(c)(1)(A). Courts have held that “Rule 26(c)’s good cause requirement for the issuance of a protective order means that the burden is upon the movant to show the necessity of its issuance, which contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements.” Harris v. Clay County, 514 F. Supp. 3d 880, 881 (N.D. Miss. 2021) (quoting In re Terra Intern, Inc., 134 F.3d 302, 306 (5th Cir. 1998) (internal quotation marks and alteration omitted). See also, e.g., Phillips ex rel. Ests. of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002) (“For good cause to exist, the party seeking protection bears the burden of showing specific prejudice or harm will result if no protective order is granted.”)

The court will “balance[] the public and private interests to decide whether a protective order is necessary.” Id. When conducting this balancing test, courts consider a variety of factors. For example, in assessing whether a confidentiality order is appropriate, courts within the Third Circuit consider: “(1) the interest in privacy of the party seeking protection; (2) whether the information is being sought for a legitimate purpose or an improper purpose; (3) the prevention of embarrassment, and whether that embarrassment would be particularly serious; (4) whether the information sought is important to public health and safety; (5) whether sharing of the information among litigants would promote fairness and efficiency; (6) whether the party benefitting from the order of confidentiality is a public entity or official; and (7) whether the case involves issues important to the public.” Arnold v. Pa. Dep’t of Transp., 477 F.3d 105, 108 (3d Cir. 2007). As another example, in assessing whether a document request poses an undue burden, a court may consider “relevance, the need of the party for the documents, the breadth of the document request, the time period covered by it, the particularity with which the documents are described and the burden imposed.” W. Bay One, Inc. v. Does 1-1,653, 270 F.R.D. 13, 14 (D.D.C. 2010) (citation omitted). Carefully research the issue in your jurisdiction to identify relevant considerations for the particular discovery request and proposed remedy and frame your argument accordingly.

Given the trial court’s authority over the discovery process in general, it has broad discretion to fashion an appropriate remedy in a particular case. Eli Lilly & Co. v. Gottstein, 617 F.3d 186, 194 (2d Cir. 2010). Per Rule 26(c)(3), the court may award expenses pursuant to Rule 37(a)(5).

Supporting Documents

The movant must include a motion or notice of motion and certification that “the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action.” Fed. R. Civ. P. 26(c)(1). The movant may also submit a proposed protective order. Both the movant and responding party will file a memorandum of law in support of or in opposition to the motion, as well as supporting evidence, affidavits, or other such materials. Depending on local rules, the movant may file a memorandum in reply. Always check local rules and standing orders to confirm page/word limits and other formatting requirements, courtesy copies, and other details. For a review of how to organize and write a persuasive memorandum of law, see Nan Haynes, Legal Writing Handbook for Clinical Students (CALI eLangdell Press 2023).

Exercise 3B-1

Checklist

To Determine Whether to Move for a Protective Order in Federal Court

✓ You can make a well-founded argument (and sustain your burden of showing) that “good cause” exists to protect your client from a discovery request that would cause “annoyance, embarrassment, oppression, or undue burden or expense” under Rule 26(c)(1).

✓ In framing this argument, carefully research the applicable test in your jurisdiction for the specific kind of discovery request and objection at issue.

✓ The parties have conferred about the issue in good faith, or you have attempted to do so with opposing counsel, as required by Rule 26(c)(1).

✓ You have made a strategic decision that the discovery sought is worth seeking judicial intervention and risking the imposition of attorney’s fees.

When Moving for a Protective Order in Federal Court

✓ Check the local rules, judicial standing orders, and Rule 16 scheduling order to identify requirements or preferences for bringing the dispute to the court’s attention. For example, does the court require that you first request a conference with the court before filing a motion? Does the court require a letter motion or formal motion?

✓ In addition to a motion and brief, attach supporting documents as necessary, such as affidavits/declarations/affirmations (including about the good faith effort to confer with opposing counsel) with the pertinent discovery request and other related materials.

Sample Documents

To illustrate the application of the federal rules and procedures described in this chapter, below is a notice of motion for a protective order, with supporting affidavits and memorandum of law; a memorandum of law in opposition to the motion; and a reply brief in support of the motion. All are annotated with explanations and relate to the claim of plaintiff Molly McBride, a child who alleges she was exposed to and poisoned by lead paint while living with her family in an apartment owned by defendant Brendan Tomaselli. The defendant demanded access to the IQ test results of the plaintiff’s mother who took the test while she was in sixth grade. The non-party mother moves for a protective order to prevent disclosure of those test results. Note that the action is in federal court based on diversity jurisdiction and is therefore governed by the Federal Rules of Civil Procedure.

Exercise 3B-2

 

Sample Document 1

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK

DAISY McBRIDE, as parent and natural guardian of Molly McBride, an infant under the age of eighteen
                           Plaintiff 25-cv-2101
                   v. NOTICE OF MOTION FOR PROTECTIVE ORDER
BRENDAN THOMASELLI,
                           Defendant

NON-PARTY’S MOTION FOR PROTECTIVE ORDER

PLEASE TAKE NOTICE that Daisy McBride, by undersigned counsel, will move this Court on a date to be scheduled by the Court, for an order to protect her from the defendant’s discovery demands for her educational records. Ms. McBride is a non-party who appears in this action solely as the parental and natural guardian of the infant plaintiff. This relief is requested pursuant to Rule 26(c) of the Federal Rules of Civil Procedure.[2]

This motion is filed after the undersigned counsel’s written and verbal attempts to settle the issue with the defendant’s attorney in a good faith effort to resolve this conflict without Court action.

Please take notice that Ms. McBride intends to serve reply papers pursuant to Local Rule 7(a)(1).[3]

Respectfully submitted,

Attorney Signature
Attorney Name
Address
Email address
Phone number
Date

 

 

Exercise 3B-3

Sample Document 2

 

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK

DAISY McBRIDE, as parent and natural guardian of Molly McBride, an infant under the age of eighteen
                           Plaintiff 25-cv-2101
                   v. AFFIDAVIT OF GOOD FAITH[4]
BRENDAN THOMASELLI,
                           Defendant

I, [Attorney Name], state the following:

  1. I am the attorney of record for the infant plaintiff and represent her non-party mother in a motion for an order of protection from the defendant’s demand that she disclose the results of an IQ test administered to her when she was a student in sixth grade.
  2. I submit this affirmation pursuant to Federal Rule of Civil Procedure 26(c)(1) and W.D.N.Y. Local Rule 7(d)(3).
  3. I made several attempts to confer with defense counsel in a good faith effort to resolve this discovery dispute.
  4. More specifically, I called defense counsel on May 23, 2025, and on May 30, 2025. Moreover, I followed up the phone calls with a letter dated June 2, 2025 (attached hereto).[5]
  5. Unfortunately, we were unable to resolve the dispute; thus, I now seek Court action.

Respectfully submitted,

Attorney Signature
Attorney Name
Address
Email address
Phone number
Date

 

 

 

Sworn to before me this

—day of –, 20–

[notary signature]

Sample Document 3

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK

DAISY McBRIDE, as parent and natural guardian of Molly McBride, an infant under the age of eighteen
                           Plaintiff 25-cv-2101
                   v. AFFIDAVIT IN SUPPORT OF MOTION FOR PROTECTIVE ORDER
BRENDAN THOMASELLI,
                           Defendant

I, [Attorney Name], state the following:

  1. I am the attorney of record for the infant plaintiff and represent her non-party mother in a motion for an order of protection from the defendant’s demand that she disclose the results of an IQ test administered to her when she was a student in sixth grade.
  2. I submit this affidavit pursuant to W.D.N.Y. Local Rule 7(a)(3).
  3. This action is for damages caused by the infant plaintiff’s exposure to lead paint when she resided with her family in an apartment owned and managed by the defendant.
  4. The plaintiff’s mother (Ms. McBride) initiated the present action against the defendant on her daughter Molly’s behalf. Among the injuries claimed as a result of Molly’s lead poisoning is a reduction in Molly’s IQ. Compl. ¶ 40.
  5. According to the plaintiff’s expert, Molly’s IQ has been reduced by 10 to 15 points solely because of her lead poisoning. Aff. of neuropsychologist Russell Macaluso, Ph.D., attached as Exhibit A, at 10. The expert has opined that the loss is not complicated by background or genetic factors. Id.
  6. When diagnosed with lead poisoning, Molly’s blood-lead level was 46 mcg/dL. McBride Dep., attached as Exhibit B, at 17:4-12.
  7. Molly’s pediatrician deemed this blood-lead level a medical emergency and hospitalized her the same day. Ex. B at 20:9-12. While hospitalized, she underwent chelation, a treatment that removes lead from the blood in an effort to limit the damage caused by lead poisoning. Id. Molly had just turned two when she was diagnosed with and hospitalized for lead poisoning. Id.
  8. The day after Molly was diagnosed, the County Department of Health inspected 617 Mariner Street, upper, where Molly lived with her mother. County Health Department Report of Inspection, attached as Exhibit C, at 2. The inspector found multiple lead paint violations. Id. at 3. More specifically, the inspector found deteriorating lead paint on six windowsills and the porch floor. Id.
  9. Molly is in special education at Chapin Elementary School. Ex. B. at 33:2-3. It is the same school that her mother attended. Id. 33:20-23.
  10. Chapin students are administered an IQ test upon admission. Id. 34:12-13. The test results are used to determine if students should be assigned to a special education program. Id.
  11. In his affidavit, the defendant’s expert has called Molly’s mother an “underemployed, mentally unstable, and dysfunctional mother.” Aff. of Nevin McGurt, attached as Exhibit D, at 27.
  12. The parties are currently undergoing discovery in the pending matter, and the defendant has demanded that Molly’s mother disclose the results of an IQ test she took when she was in sixth grade. Def.’s Req. for Produc. of Doc. #12, attached as Exhibit E.
  13. When Molly’s mother read McGurt’s affidavit, she was “upset and deeply hurt” and it made her “question her value as a parent.” Ex. B at 39:2-4.
  14. Molly’s mother does not want her IQ test results disclosed. Id. 44:2-23. The disclosure of such private, personal, and confidential information would be very embarrassing for her. Id.
  15. She brought this action seeking no benefit for herself, and she desires only to recover for Molly’s injuries. Id. 51:23-52:8.
  16. The plaintiff’s expert has opined that a child’s IQ will be reduced solely because of exposure to lead poisoning, regardless of the child’s IQ before exposure. Ex. A at 23, 49.
  17. In addition, while intelligence is heritable, there is no one-to-one relationship between a particular child’s intelligence and that of a parent or sibling. Id. at 52. This is especially true because environmental factors have a strong influence on intelligence regardless of genetics. Id. at 53.
  18. Nevertheless, the defendant asserts his expert cannot opine on the cause of Molly’s reduced IQ without the IQ test results of her mother. Ex. D at 5.

 

Respectfully submitted,

Attorney Signature
Attorney Name
Address
Email address
Phone number
Date

 

 

 

Sworn to before me this

—day of –, 20–

[notary signature]

 

Exercise 3B-4

Sample Document 4

 

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK

DAISY McBRIDE, as parent and natural guardian of Molly McBride, an infant under the age of eighteen
                           Plaintiff 25-cv-2101
                   v. MEMORANDUM OF LAW IN SUPPORT OF NON-PARTY’S MOTION FOR PROTECTIVE ORDER
BRENDAN THOMASELLI,
                           Defendant

This memorandum of law is submitted in support of Daisy McBride for an order to protect her from the defendant’s demand for the results of an IQ test administered to her when she was a student in sixth grade. Ms. McBride is a non-party who appears in this action solely as the parent and natural guardian of the infant plaintiff.

 In this negligence action based on diversity jurisdiction, the infant plaintiff alleges the defendant property owner, Brendon Tomaselli, was negligent because the infant plaintiff developed lead poisoning as a result of her exposure to deteriorating lead pant when she lived with her family at a rental unit owned by the defendant.

The facts are set forth in the attorney affidavit that accompanies this memorandum.

THIS COURT SHOULD GRANT DAISY McBRIDE’S MOTION FOR A PROTECTIVE ORDER FROM DISCLOSURE OF HER IQ TEST RESULTS BECAUSE DISCLOSURE OF THESE IRRELEVANT RESULTS WOULD CAUSE HER EMBARASSMENT AND UNNECESSARILY BROADEN THE SCOPE OF LITIGATION.[6]

This[7] Court should grant Ms. McBride’s motion for a protective order for two reasons. First, as Ms. McBride testified, disclosure of such private and personal information would cause her great embarrassment. Second, the results are not relevant and permitting discovery of this non-party’s test results would unnecessarily broaden the scope of litigation and further complicate an already complex issue.

 Rule 26(c)(1) permits a court to issue an order “for good cause” to “protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” The “grant and nature of such protection is singularly within the discretion of the district court and may be reversed only on a clear showing of abuse of discretion.” Galella v. Onassis, 487 F.2d 986, 997 (2d Cir. 1973).[8] This Court should use its discretion to grant Ms. McBride an order of protection against the defendant’s intrusive demand because disclosure would intrude on her privacy and because the test results are not relevant.

A. Disclosure of Ms. McBride’s IQ test results would intrude on her privacy and cause her embarrassment.

Rule 26(c)(1) applies not only to parties, but also to “any person from whom discovery is sought.” In evaluating a non-party’s request for a protective order, the court considers the fact of non-party status in weighing the burdens imposed under the circumstances. Am. Standard Inc. v. Pfizer Inc., 828 F.2d 734, 739 (Fed. Cir. 1987) (affirming order restricting discovery in part because non-party status weighted against disclosure). More specifically, discovery directed to non-parties can be limited to protect them from disclosure of confidential documents. Dart Indus. Co. v. Westwood Chem. Co., 649 F.2d 646, 649 (9th Cir. 1980) (suggesting that appropriate description is “non-party” discovery, not “third-party” discovery, as “the word non-party serves as a constant reminder of the reasons for the limitations that characterize ‘third-party’ discovery”) (citation omitted).

Privacy interests of innocent non-parties such as Ms. McBride should “weigh heavily in a court’s balancing equation.” United States v. Amodeo, 71 F.3d 1044, 1050 (2d Cir. 1995) (internal quotations and citations omitted) (considering privacy rights in the context of sealing court documents).[9] In gauging the weight to be given to privacy rights, “courts should first consider the degree to which the subject matter is traditionally considered private rather than public.” Id. at 1051. Intrusion into the private records of a non-party—such as Ms. McBride’s test results—is a burden on the non-party and an invasion into their “protected zone of privacy.” See In re N.Y. Cnty. DES Litig., 570 N.Y.S. 2d 804, 806 (App. Div. 1991) (noting that the United States Supreme Court has recognized that “the protected zone of privacy encompasses the avoidance of disclosure of personal matters”). Thus, “[d]iscovery requests that tend to broaden the scope of litigation and intrude upon rights to privacy should not be permitted unless there is a showing that the need for disclosure outweighs the importance of protecting non-parties’ privacy.” Van Epps v. County of Albany, 706 N.Y.S.2d 855, 860 (Sup. Ct. 2000) (finding educational records of lead poisoned infant plaintiff’s parents are not discoverable).

The defendant’s demand for Ms. McBride’s IQ test results is an attempt to harass Ms. McBride and must not be sanctioned by this Court. The defendant’s expert unabashedly and without reason suggests that Ms. McBride is underemployed, mentally unhealthy, and dysfunctional as a parent. Ex. D at 27-29. When Ms. McBride read the expert’s affidavit, she was “upset” and” deeply hurt.” Ex. B at 39:2-4. It made this hard-working single parent “question her value” as Molly’s mother. Id.

These unfounded accusations serve no other purpose but to further embarrass and harass Ms. McBride into compliance. The burden on Ms. McBride is significant. She brought this action seeking no benefit for herself, and she desires only to recover for Molly’s injuries. Ex. B at 51:23-52:8. Ms. McBride should not be forced to decide between fighting for her young daughter and divulging personal information to the defendant. This unwarranted attack on Molly’s mother serves as a ground for this Court to shield her from this abuse with the issuance of an order of protection.

B. The results of Ms. McBride’s IQ test are not relevant because her daughter’s IQ was reduced solely because of her lead poisoning, and if disclosed will result in unfettered litigation.

There are few, if any, federal cases determining if IQ results are relevant in a lead paint case. Caban v. 600 E. 21st Street Co., 200 F.R.D. 176, 179 (E.D.N.Y. 2001) (citing defense counsel’s letter that they are “not aware of any federal cases” dealing with the issue of compelling parental IQ upon a proper showing of relevance). However, the New York Court of Appeals, in a case cited by the Eastern District of New York in its Caban decision, formulated a test to determine if IQ results are relevant. Andon v. 302-304 Mott St. Assocs., 94 N.Y.2d 740, 746-47 (2000). The court weighs the defendant’s need for information against its possible relevance, the burden on the plaintiff, and the potential for undue delay and unfettered litigation. Id. at 747.

First, that the record sought is not relevant boils down to a simple syllogism. Evidence is not relevant unless “it has any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.” Fed. R. Evid. 401. The reduction in Molly’s IQ is solely the result of her exposure to lead-based paint and is not complicated by background or genetic factors. Ex. A. at 22. Therefore, the results of Daisy McBride’s IQ testing are not relevant to the cause of her daughter’s loss of IQ.

Based on Dr. Macaluso’s expert opinion, the IQ test results have no relevance at all. Dr. Macaluso’s opinion is based on his thirty years experience studying the effects of childhood lead exposure on IQ, his examination and testing of over fifty lead-poisoned children, and five peer reviewed medical studies. Id. at 3-8.

As opined by Dr. Macaluso, scientific and medical literature reflects that an individual’s IQ will be reduced solely by exposure to lead poisoning. Id. at 32-33. This is true regardless of the individual’s socioeconomic background or genetic predisposition. Id. at 38-39. In addition, the impact of exposure to lead is not related to the medical or educational history of family members. Id. A child’s IQ will be lowered by exposure to lead regardless of her level pre-exposure. Id. at 39-41. Thus, Dr. Macaluso was able to conclude with a reasonable degree of medical certainty after examining Molly that her IQ had been reduced by 10-15 points. Id. at 10. Because the harm to Molly’s IQ is determinable without any other records, the IQ results of her mother is irrelevant.

Second, a decision denying the infant plaintiff’s mother an order of protection would unnecessarily broaden the scope of litigation and further complicate an already complex issue. See Andon, 731 N.E.2d at 592. In Andon, the New York Court of Appeals affirmed a decision denying a motion to compel an infant plaintiff’s mother to take an IQ test in an action for personal injury resulting from her infant son’s exposure to lead-based paint. Id. at 591. The court evaluated competing interests, including the potential for confusion and delay, New York’s policy favoring open discovery, the risk of “unfettered litigation,” and “the need to avoid undue delay created by battling experts.” Id. at 592-93. The court held that allowing this IQ test would have the effect of “turning the fact-finding process into a series of mini-trials regarding the mother’s IQ.” Id. (citation omitted).

Similarly, the Supreme Court of Albany County denied the defendants’ demand to compel parents of a lead-poisoned child to undergo IQ testing, stating that the defendants would “embark on a highly intrusive . . . never ending foray into the realm of speculation, that offers no hope of achieving a resolution of any causality issue.” Van Epps, 706 N.Y.S. 2d at 865. This Court should reach the same conclusion in this case and protect the infant plaintiff’s mother’s privacy rights.

CONCLUSION

For the foregoing reasons, this Court should use its discretion to grant Ms. McBride’s motion for a protective order.

 

Respectfully submitted,

Attorney Signature
Attorney Name
Address
Email address
Phone number
Date

 

 

Sample Document 5

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK

DAISY McBRIDE, as parent and natural guardian of Molly McBride, an infant under the age of eighteen
                           Plaintiff 25-cv-2101
                   v.
BRENDAN THOMASELLI,
                           Defendant

DEFENDANT’S MEMORANDUM OF LAW IN OPPOSITION TO
NON-PARTY’S MOTION FOR A PROTECTIVE ORDER

The plaintiff, through her mother (Ms. McBride), initiated this claim against the defendant, Brendan Tomaselli, as the landlord of the property where the plaintiff lived with her family when she was allegedly exposed to lead-based paint. The plaintiff alleges that because of her exposure, her IQ has been diminished. During her deposition, Ms. McBride testified that she took an IQ test when she was in sixth grade. The defendant then sought to discover the IQ test results, since his expert cannot complete his evaluation of the plaintiff without this information. See Aff. of neuropsychologist Nevin McGurt, PhD., attached as Exhibit A.

According to Dr. McGurt, the IQ results are “material, relevant, and crucial to a full and reasoned analysis of why the infant plaintiff is the way she is and how she may turn out to be.” Ex. A at 10-11. He further opined that a comparative analysis of family members is “vitally necessary” and would likely lessen the probability that the plaintiff’s claimed lead exposure “is a significant, primary, or complete cause of the alleged IQ loss and behavioral and learning deficits.” Id. at 31. He stated: “Parents and siblings provide the only ‘controls’ available in evaluating the behavioral and cognitive deficiencies alleged by the plaintiff because there is no baseline pre-exposure IQ for the child . . . It is well-recognized that an evaluator’s access to [these] records . . . is not merely relevant, but absolutely crucial . . .” Id. at 32. Dr. McGurt submitted an index of published peer-reviewed medical authorities in support of his opinions. Id. at 44-52.

He correctly notes that most children with cognitive problems have not been exposed to lead paint, which necessarily means there are other causes of developmental problems in children. Id. at 34. He cites the 2002 CDC report Managing Elevated Blood Lead Levels Among Young Children for the proposition that “an EBLL [elevated blood lead level] should be viewed as a risk factor for neurodevelopmental problems, not a diagnosis.” Id. at 43. Other risk factors must be carefully considered when attempting to understand the contribution of a single risk factor to the results of a neuropsychological evaluation. Id. at 44.

Even the plaintiff’s expert recognizes that heredity is a factor contributing to a person’s IQ. Aff. of Russell Macaluso, attached as Exhibit B. The plaintiff’s expert concedes that intelligence is “known to be highly heritable.” Id. at 29.

Based on his review of Ms. McBride’s deposition testimony, Dr. McGurt opined that she is underemployed, mentally unhealthy, and dysfunctional as a parent. Ex. A at 27-29. His opinion is based on her testimony that while she has an associate’s degree in business, she has worked only as a cook at fast-food restaurants, that she feels anxious or depressed at least three out of seven days, and that occasionally she is unsure where her daughter is located. Id. at 45-50. Because Ms. McBride’s IQ test results are relevant to this action and disclosure would not cause an undue burden, this Court should deny the motion for a protective order.

THIS COURT SHOULD DENY THE MOTION BECAUSE MS. McBRIDE’S IQ TEST RESULTS ARE RELEVANT TO THE EVALUATION OF THE PLAINTIFF’S DAMAGES AND BECAUSE NEITHER THE DISCOVERY DEMAND NOR THE DEFENDANT’S EXPERT’S OPINION ARE AN ATTEMPT TO HARASS OR EMBARRASS.[10]

This Court should deny the motion for two reasons. One, the IQ test results of the plaintiff’s biological mother are relevant to an evaluation of the plaintiff’s claim that her IQ was diminished solely as a result of her alleged exposure to lead paint when she lived in an apartment owned by the defendant. See Ex. B at 29 (agreeing with defense expert that intelligence is “known to be highly heritable”). And two, contrary to Ms. McBride’s assertion, neither the discovery demand nor Dr. McGurt’s comments about Ms. McBride are intended to harass or embarrass her; rather, both are based on her own testimony.

This Court has wide discretion when deciding disputes over pre-trial discovery. In re Fitch, Inc., 330 F.3d 104, 108 (2d Cir. 2003). This Court should exercise its discretion to allow this relevant discovery material in this case.

A. The plaintiff’s mother’s IQ test result is relevant to an evaluation of the plaintiff’s claim that her IQ was diminished because of her alleged exposure to lead paint, because intelligence is highly inheritable.

The federal rules provide that parties may undertake discovery[11] into:

any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

Fed. R. Civ. P. 26(b)(1). “Information is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. Relevance is a matter of degree, and the standard is applied more liberally in discovery than it is at trial.” N. Shore-Long Island Jewish Health Sys., Inc. v. MultiPlan, Inc., 325 F.R.D. 36, 47 (E.D.N.Y. 2018) (citation omitted). Importantly, evidence need not be admissible at trial in order to be discoverable. Fed. R. Civ. P. 26(b)(1).

Other courts have held that academic records of a lead-paint plaintiff’s family are discoverable. See, e.g., Caban ex rel. Crespo v. 600 E. 21st Street Co., 200 F.R.D. 176, 183 (E.D.N.Y. 2001) (allowing discovery of sibling’s academic records); Tripp v. Giroux, 742 N.Y.S.2d 742, 743-44 (App. Div. 2002) (allowing discovery of parents’ and siblings’ academic records but not discovery of family members’ medical records). Caban is the only published federal case concerning the relevance of academic records of a lead-paint plaintiff’s family. In Caban, the Eastern District of New York reasoned that the academic records of non-party siblings might lead to evidence related to a lead-paint plaintiff’s cause of action. 200 F.R.D. at 183. It therefore ordered an in-camera examination of the records to determine their probative value. Id.[12]

 The New York Court of Appeals has held that “discovery determinations are discretionary; each request must be evaluated on a case-by-case basis with due regard for the strong policy supporting open disclosure.” Andon v. Mott, 731 N.E.2d 589, 594 (N.Y. 2000). The Andon court established a balancing test to determine whether the movant’s need for the requested discovery outweighs the burden imposed on the non-party family member’s privacy interest in the information sought. Id. at 593. In that case, the defendants sought to subject the infant plaintiff’s mother to an IQ test, which the court found was a significant burden. Id. It also noted that the defendant’s expert failed to identify any scientific articles in support of his opinion that the mother’s IQ was relevant. Id. Thus, the court determined that the records were not discoverable, but noted its decision was far from a “blanket prohibition” against discovery of non-party IQ results in all lead-paint cases. Id. at 592.

In this case, the results of the infant plaintiff’s mother’s IQ test are discoverable because they bear on the issue of whether the plaintiff’s IQ was diminished solely because of her alleged exposure to lead paint. Both the plaintiff’s expert Russell Macaluso and the defendant’s expert McGurt agree that heredity is a factor contributing to a person’s IQ.

Moreover, Dr. McGurt, a certified clinical neuropsychologist, has established that test results bear on the issue of the cause of the plaintiff’s IQ. Ex. A at 10-11. Dr. McGurt’s report establishes a causal connection between the plaintiff’s cognitive deficiencies and genetic factors, thus supporting the defense that the plaintiff’s injuries were caused by genetics. Id. at 10. Dr. McGurt provides an extensive analysis of possible causes of behavioral and cognitive problems in young school-aged children like the plaintiff. Id. at 10-18. He explains that a valid assessment of the plaintiff’s alleged cognitive developmental problems “requires a careful analysis of the many significant hereditary, biological, environmental, and socio-economic conditions that may impact her.” Id. at 36.

He further explains that analysis of these factors would likely lessen the probability that plaintiff’s claimed lead exposure “is a significant, primary, or complete cause of the alleged IQ loss and behavioral and learning deficits.” Id. at 42. He explains the necessity of comparing parent and sibling information to plaintiff’s, stating: “Parents and siblings provide the only ‘controls’ available in evaluating the behavioral and cognitive deficiencies alleged by the plaintiff because there is never a baseline pre-exposure IQ for the child . . . It is well-recognized that an evaluator’s access to [these] records . . . is not merely relevant, but absolutely crucial . . .” Id. at 22. In support of his opinions, Dr. McGurt cites several medical and scientific studies, making the basis of these conclusions clear for this Court. Id. at 5, 15, 29, 34.

Contrary to Ms. McBride’s assertion, the defendant’s reasonable demand for the test results will not dramatically broaden the scope of litigation. Indeed, the very purpose of discovery is to answer the questions posed in the litigation. Therefore, because the requested IQ test is relevant to the resolution of this case, it should be discoverable.

B. The request for the IQ test results is based on the plaintiff’s mother’s own testimony, not an effort to embarrass or unduly burden her.

A court should deny a protective order absent good cause “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1).[13] Although Ms. McBride speculates that the request for her IQ test results and Dr. McGurt’s opinion of her are an attempt to harass and embarrass, the request and expert opinion are directly related to Ms. McBride’s own testimony.

Ms. McBride testified about the test results at her deposition. The defendant’s expert then opined that he needs the test results to fully evaluate the plaintiff’s claim that her IQ was diminished solely because of her exposure to lead paint. The discovery demand is simply a rational consequence of these two events. Moreover, Dr. McGurt’s opinion that Ms. McBride is underemployed, mentally unhealthy, and dysfunctional as a parent is based on Ms. McBride’s testimony that while she has an associate’s degree in business, she has worked only as a cook at fast food restaurants, that she feels anxious or depressed at least three out of seven days and that occasionally she is unsure where her daughter is located. The doctor’s opinion is reasonably based on Ms. McBride’s testimony.

Unlike the undue burden placed on the non-party mother to submit to an IQ test in Andon, the burden placed on Ms. McBride to produce existing results is minimal, if a true burden at all.[14] The relevance of Ms. McBride’s IQ test results and the defendant’s crucial need for them far outweigh any burden that may be placed on the plaintiff to obtain the records. Unlike in Andon, production of existing records to establish a well-documented causal connection to the plaintiff’s injuries in this case would not cause any confusion or undue delay.

CONCLUSION

For the foregoing reasons, this Court should use its discretion to deny the motion for a protective order.

 

 

Respectfully submitted,

Attorney Signature
Attorney Name
Address
Email address
Phone number
Date

 

 

 

Sample Document 6

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK

DAISY McBRIDE, as parent and natural guardian of Molly McBride, an infant under the age of eighteen
                           Plaintiff 25-cv-2101
                   v.
BRENDAN THOMASELLI,
                           Defendant

 

NON-PARTY’S REPLY MEMORANDUM OF LAW
IN FURTHER SUPPORT OF HER MOTION FOR A PROTECTIVE ORDER

This memorandum of law is submitted in reply to the defendant’s opposition to Daisy McBride’s motion for an order to protect her from the defendant’s demand for the results of an IQ test administered to her when she was a student in sixth grade. Ms. McBride appears in this action solely as the parent and natural guardian of the infant plaintiff.

Both the plaintiff’s expert, Dr. Macaluso, and the defendant’s expert, Dr. McGurt, agree that heredity is a factor contributing to a person’s IQ, so a mother’s IQ will affect her child’s IQ. But Dr. Macaluso opines that if that child is exposed to lead, the child’s IQ will be reduced solely because of the exposure. For example, hypothetically, if Molly McBride took an IQ test at age three and her IQ was measured at 110, both experts agree that the number was affected by Daisy McBride’s IQ. Then, after Molly was exposed to lead at age four, if she hypothetically took another IQ test, and result was 100, according to Dr. Macaluso, the reduction was solely the result of her exposure. Therefore, the mother’s IQ test is totally irrelevant to the reduction in the child’s IQ. Thus, the defendant’s opinion fails to rebut Dr. Macaluso’s opinion that the plaintiff’s IQ was diminished solely because of her exposure to lead paint. Absent evidence to rebut Dr. Macaluso’s scientifically supported opinion, that the plaintiff’s IQ was reduced solely because of her exposure to lead-based paint while she resided in a property owned by the defendant, the defendant cannot establish the relevance of an IQ test administered to the plaintiff’s mother when she was a student in sixth grade.

Under New York law in the context of an infant plaintiff’s claim for damages caused by lead-paint poisoning, when “a party seeking disclosure from a non-party fails to establish the relevance of the information sought, disclosure must be denied.” Van Epps v. County of Albany, 706 N.Y.S.2d 855, 859-60 (Sup. Ct. 2000). Given Ms. McBride’s status as a non-party, and the defendant’s failure to demonstrate relevance, the only remaining consideration is whether disclosure of confidential documents would impose a burden on non-party Ms. McBride. The privacy interests of non-parties such as Ms. McBride should weigh in a court’s decision. United States v. Amodeo, 71 F.2d 1044, 1050 (2d Cir. 1995). That factor lies solidly in Ms. McBride’s favor. She stated unequivocally that she does not want the defendant to have access to her IQ test results. McBride Dep. at 44:2-23. The disclosure of this private, personal, and confidential information would be very embarrassing for her. Id. She brought this action seeking no benefit for herself, and she desires only to recover for Molly’s injuries. Id. 51:23-52:8.

For the foregoing reasons and the reasons stated in the memorandum of law submitted in support of the motion, this Court should use its discretion to grant Ms. McBride’s motion for a protective order.

 

 

Respectfully submitted,

Attorney Signature
Attorney Name
Address
Email address
Phone number
Date

 

 

Coming Up Next

When discovery is complete, parties have 30 days to move for summary judgment (unless a different deadline is set by local rule or judicial order), which is the subject of the next chapter.

  1. Sometimes, parties might enter into a confidentiality agreement themselves, without needing to engage the court. Alternatively, parties could jointly propose a stipulated confidentiality order for the court to enter to limit the use or disclosure of the discovery material produced in the case. ↵
  2. Fed. R. Civ. P. 7(b) requires that a motion must state the grounds for relief. ↵
  3. Always check your court’s local rules. In the Western District of New York, Local Rule 7(a)(1) requires the movant to state its intention to file a reply in the notice of motion. ↵
  4. WDNY local rules require this motion to be accompanied by an affidavit showing a good faith effort to resolve discovery disputes before seeking court intervention. W.D.N.Y. Civ. R. 7(d)(3). ↵
  5. Be sure to attach any related written correspondence to support your request. ↵
  6. This point heading includes the action the writer wants the court to take, plus the reasons why it should take that action. For more on point headings, see Nan Haynes, Legal Writing Handbook for Clinical Students, Ch. 7 (CALI eLangdell Press 2023). ↵
  7. The paragraphs between the point heading and sub-point A are umbrella paragraphs, which introduce the reader to what follows and help organize the brief. For more on umbrella paragraphs, see Nan Haynes, Legal Writing Handbook for Clinical Students, Ch. 3 (CALI eLangdell Press 2023). ↵
  8. Note that the writer, who argues in support of the motion, portrays the rule in a way that supports their position by focusing on when a protective order will be granted. For more on writing rules persuasively, see Nan Haynes, Legal Writing Handbook for Clinical Students, Ch. 4 (CALI eLangdell Press 2023). ↵
  9. The writer grounds the rule in binding authority. For more on grounding rules, see Nan Haynes, Legal Writing Handbook for Clinical Students, Ch. 1 (CALI eLangdell Press 2023). ↵
  10. This heading is a major contention, which is supported by sub-headings A and B. It includes the action the writer wants the court to take and two reasons why the court should take the action. For more on headings, see Nan Haynes, Legal Writing Handbook for Clinical Students, Ch. 7 (CALI eLangdell Press 2023). ↵
  11. The rule is stated persuasively by keeping the focus leaning the same way the rule application will lean. For more on writing rules persuasively, see Nan Haynes, Legal Writing Handbook for Clinical Students, Ch. 4 (CALI eLangdell Press 2023). ↵
  12. This paragraph includes rule illustrations written as parentheticals and in-text illustrations. For more on writing rule illustrations, see Nan Haynes, Legal Writing Handbook for Clinical Students, Ch. 2 (CALI eLangdell Press 2023). ↵
  13. Notice that the writer, who argues against the motion, portrays the rule in a way that supports their client’s position by focusing on when a protective order will be denied. ↵
  14. This is a rebuttal to the adversary’s argument. Note that it follows the main part of the application, because the writer wants to show why they are right before they show why their adversary is wrong. For more on writing rebuttals, see Nan Haynes, Legal Writing Handbook for Clinical Students, Ch. 5 (CALI eLangdell Press 2023). ↵

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