1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PETER TODD WILLIAMS, Case No. 20-cv-03510-JCS

8 Plaintiff,

ORDER REGARDING MOTION TO

9 v. STRIKE, MOTION FOR PROTECTIVE

ORDER, AND ADMINISTRATIVE

10 LAWRENCE LIVERMORE NATIONAL MOTIONS TO FILE UNDER SEAL

SECURITY, LLC,

11 Re: Dkt. Nos. 39, 49, 50, 73 Defendant.

12 13 I. INTRODUCTION 14 Plaintiff Peter Todd Williams, pro se, asserts a claim against his former employer 15 Defendant Lawrence Livermore National Security, LLC (“LLNS”) for retaliation in violation of 16 the False Claims Act (“FCA”). Based on concerns regarding confidentiality and the logistical 17 challenges of litigating claims involving sensitive information, LLNS moves to strike certain 18 allegations of Williams’s complaint under Rule 12(f) and for a protective order governing 19 discovery. Williams opposes aspects of both motions. The Court held a hearing on December 10, 20 2021. For the reasons discussed below, the motion for a protective order is GRANTED with one 21 modification, and the motion to strike is GRANTED.1 22 LLNS has also shown compelling reasons to seal a non-public document attached to 23 Williams’s opposition brief and a narrowly-tailored redaction to that brief addressing that 24 document. LLNS’s administrative motion to maintain that material under seal (dkt. 73) is 25 GRANTED. Based on LLNS’s stated non-opposition to the public filing of Williams’s September 26 3, 2021 case management statement and his original and amended complaints, Williams’s motion 27 1 to file his case management under seal (dkt. 39) is DENIED, and those documents are hereby 2 UNSEALED. 3 II. WILLIAMS’S ALLEGATIONS 4 For simplicity, this section summarizes Williams’s allegations as if true. Nothing in this 5 order should be construed as resolving any issue of fact that might be disputed. 6 Williams was employed by LLNS at Lawrence Livermore National Laboratory (“LLNL”) 7 as a design physicist, modeling the corner-turning behavior of certain explosives. 1st Am. Compl. 8 (“FAC,” dkt. 17) ¶¶ 4, 24. In allegations that LLNS moves to strike, Williams states that his work 9 related to nuclear weapons—specifically, ensuring that the W80-4 warhead would detonate 10 reliably. E.g., id. ¶¶ 25–32. His early performance reviews were excellent. Id. ¶ 33. 11 One of Williams’s colleagues doing similar work, Peter Vitello, developed models that had 12 received acclaim within LLNS for the performance of one of the explosives at issue. Id. ¶¶ 36–38. 13 When Williams examined Vitello’s models, he determined that they rested on “jagged” rate law 14 curves that seemed unlikely to be correct., particularly given the limited experimental background 15 on which the models were based. Id. ¶¶ 39–43. Vitello concealed those underlying rate curves, 16 and the fact that he had multiple different models, cherry-picking only the model that best fit each 17 experiment even though each described the same fundamental principles that should have been 18 consistent between experiments. Id. ¶¶ 51–55. When Williams exposed Vitello’s rate curves, 19 other colleagues were shocked, and Vitello was embarrassed and angry. Id. ¶¶ 57, 63, 64. 20 Williams was eventually fired by LLNS, purportedly for lack of productivity and failure to 21 effectively use existing models and analysis tools. Id. ¶¶ 87, 90, 95. Williams alleges those 22 reasons were pretext, as he in fact performed well and was recognized by colleagues for doing so. 23 See id. ¶¶ 93–94, 97.2 LLNS also stated that Williams had “difficulty in achieving an effective 24 balance between doing what was request, and challenging the underlying approach,” which 25 Williams takes as indicating that he was fired for exposing the flaws in Vitello’s work. See id. 26 2 Williams asserts that LLNS’s stated reasons for firing him suggest age discrimination, but has 27 not asserted a claim for such discrimination. See FAC ¶¶ 98–99. Similarly, Williams asserts that 1 ¶ 103. Williams believes that concealment of those flaws allowed LLNS to obtain additional 2 federal funds and thus constituted a violation of the FCA, or at least that Williams reasonably 3 believed it was such a violation. He therefore asserts that his firing was retaliation in violation of 4 that statute. 5 III. MOTION FOR PROTECTIVE ORDER 6 A. Arguments 7 LLNS seeks a protective order that, in addition to the standard terms of this Court’s model 8 protective order, would bar discovery into classified information and allow witnesses who have 9 access to classified information to decline to answer “deposition questions that implicate sensitive 10 information in areas that are subject to classification.” Mot. for Protective Order (dkt. 50) at 2; 11 Def.’s Proposed Protective Order (dkt. 50-4) § 14.2. LLNS also seeks additional time to respond 12 to discovery requests and to address confidentiality designations in order to allow it to confer with 13 relevant stakeholders, and a provision clarifying “that ‘CONFIDENTIAL’ information includes 14 research information and information that implicates sensitive subject areas.” Mot. for Protective 15 Order at 2–3. LLNS contends that such provisions are appropriate to allow LLNS and the relevant 16 witnesses to comply with laws, regulations, and other rules prohibiting the disclosure of classified 17 information, whether information is classified, the technical accuracy of classified information in 18 the public record, or comments on unclassified information related to sensitive subject areas that 19 could tend to reveal by implication classified information. Mot. for Protective Order at 3–5. 20 Williams does not oppose entry of the model protective order or allowing the extra time 21 LLNS seeks, and disclaims any intent or need to discover classified information. Opp’n to 22 Protective Order (dkt. 53). He objects, however, to the provision including “research information” 23 in the definition of confidential information, arguing that LLNS routinely publishes research 24 information. Id. at 2. He also objects to allowing witnesses to decline to answer questions 25 regarding “sensitive information in subject areas that are subject to classification, such as subject 26 areas related to the federal nuclear weapons program or nuclear weapons,” arguing that the 27 standard is vague and will be abused to cover “any and all explosives theory and models.” Id. at 3. 1 as information that qualifies for protection under Rule 26(c) of the Federal Rules of Civil 2 Procedure, and would allow witnesses who have access to classified information to decline to 3 answer “questions that implicate classified information” and “questions regarding nuclear 4 weapons.” Pl.’s Proposed Protective Order (dkt. 53-1) §§ 2.2, 14.2. 5 LLNS clarifies in its reply that it does not seek to treat all research information as 6 confidential, only “confidential research information.” Reply re Protective Order (dkt. 64) at 1–2. 7 LLNS also argues that limiting witnesses’ ability to decline to answer questions to those 8 implicating actual classified information or nuclear weapons, without also covering other 9 “sensitive information in subject areas that are subject to classification,” would place witnesses in 10 untenable situations where their obligations in depositions would conflict with “rules, regulations 11 and statutes governing sensitive national security information.” Id. at 2–3. 12 B. Analysis 13 District courts have discretion to enter protective orders governing discovery, including for 14 the protection of confidential information:

15 [P]ursuant to Federal of Civil Procedure 26(c), “[t]he court may, for good cause, issue an order . . . requiring that a trade secret or other 16 confidential research, development, or commercial information not be revealed or be revealed only in a specified way.” Fed. R. Civ. P. 17 26(c)(1)(G). The district court has “broad discretion . . . to decide when a protective order is appropriate and what degree of protection 18 is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984). 19 In re Facebook, Inc. Consumer Priv. User Profile Litig., No. 18-md-02843-VC (JSC), 2021 WL 20 3209711, at *3 (N.D. Cal. July 29, 2021). Protective orders may also “specify[] terms . . . for the 21 disclosure or discovery,” “forbid[] inquiry into certain matters, or limit[] the scope of disclosure or 22 discovery to certain matters,” among other possible terms. Fed. R. Civ. P. 26(c)(1). 23 Here, the parties agree on most terms of a protective order. They differ as to the definition 24 of “confidential” information—which may be produced in discovery, but is subject to rules 25 regarding further disclosure and filing in the public record—and as to a provision allowing 26 witnesses with access to classified information to decline to answer certain questions. 27 1. Confidential Information 1 2.2. “CONFIDENTIAL” Information or Items: information (regardless of how it is generated, stored or maintained) or tangible 2 things that qualify for protection under Federal Rule of Civil Procedure 26(c), including but not limited to confidential research 3 information and sensitive information implicating national security. 4 Def.’s Proposed Protective Order § 2.2. In response, Williams proposes the following, which 5 mirrors the Court’s model protective order:

6 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is generated, stored or maintained) or tangible 7 things that qualify for protection under Federal Rule of Civil Procedure 26(c). 8 9 Pl.’s Proposed Protective Order § 2.2. 10 Rule 26(c)(1)(G) specifically allows for protection of “confidential research . . . 11 information.” Accordingly, while the specific inclusion of “confidential research information” 12 may be redundant to the basic definition of material subject to protection under Rule 26(c), it is 13 entirely consistent with that rule. The Court therefore GRANTS LLNS’s motion as to that 14 provision. That said, the Court does not suggest that all research information is subject to 15 designation. In the event of a dispute, the designating party (presumably LLNS) will bear the 16 burden of persuasion to show that the information at issue is in fact “confidential” and subject to 17 protection under Rule 26(c). See Def.’s Proposed Protective Order § 6.3; Pl.’s Proposed 18 Protective Order § 6.3. Research information that LLNS has publicized or has not taken steps to 19 keep confidential would not be protected. 20 Turning to “sensitive information implicating national security,” while Williams does not 21 include that language in his proposal, he does not specifically object to it and has offered no 22 argument that any such material would not warrant protection. The Court therefore adopts 23 LLNS’s proposed definition of confidential information. 24 The parties are reminded that a confidentiality designation does not relieve the designating 25 party of its burden to show either good cause or compelling reasons (as applicable to the particular 26 context of a filing) for filing material under seal in the record of the case. 27 2. Protection from Deposition Questions 1 at least some right to decline to answer deposition questions implicating their obligations to 2 protect that information. They offer the following competing provisions defining that right:

3 14.2. No witness who has access to classified information shall be required to respond to deposition questions that implicate classified 4 information or sensitive information in subject areas that are subject to classification, such as subject areas related to the federal nuclear 5 weapons program or nuclear weapons. 6 Def.’s Proposed Protective Order § 14.2.

7 14.2 No witness who has access to classified information shall be required to respond to deposition questions that implicate classified 8 information, nor to questions regarding nuclear weapons. 9 Pl.’s Proposed Protective Order § 14.2. 10 Both parties’ provisions appear to be intended to protect witnesses from violating their 11 obligations under applicable laws, regulations, and rules regarding the protection of classified 12 information, which sweep somewhat more broadly than merely prohibiting direct disclosure of 13 such information. See, e.g., 10 C.F.R. § 1045.65 (prohibiting comment on the technical accuracy 14 or classification status of certain information published in open literature). Under either party’s 15 proposal, any dispute as to a witness’s refusal to answer a question would likely turn on whether 16 the witness’s obligations under those rules prohibited them from doing so. 17 The parties’ agreement that witnesses with access to classified information need not 18 answer questions regarding nuclear weapons provides a clear standard that might in some 19 circumstances avoid the need for technical parsing of applicable rules, and the Court adopts that 20 provision. The disputed clause regarding other “sensitive information in subject areas that are 21 subject to classification,” however, adds little clarity beyond the rules that LLNS asserts it is 22 intended to protect. While any such “sensitive information” is likely entitled to a designation as 23 confidential, LLNS has not shown that all sensitive information related to “subject areas that are 24 subject to classification” is wholly prohibited from disclosure, and Williams is correct that an 25 overly broad interpretation of such “subject areas” could encompass virtually any question about 26 his work at LLNL. To avoid any unintended implication that the protective order imposes more 27 stringent limitations on Williams’s ability to obtain discovery than is required by those rules, or 1 under those rules, the Court adopts the following version of section 14.2:

2 14.2 No witness who has access to classified information shall be required to respond to deposition questions that implicate classified 3 information, to questions regarding nuclear weapons, or to questions where a response would violate the witness’s obligations under 4 applicable statutes, regulations, or rules regarding the protection of classified information. 5 6 Any dispute as to whether a witness has improperly refused to answer questions may be 7 raised in a motion to compel. 8 IV. MOTION TO STRIKE 9 A. Arguments 10 LLNS moves to strike certain allegations of Williams’s complaint that it contends “stray[] 11 far beyond the scope” of Williams’s retaliation claim, and instead consist of “far-ranging and 12 speculative allegations concerning the design and testing of nuclear weapons, the federal nuclear 13 weapons program, the United States Stockpile Stewardship Program, and efforts to defend against 14 terrorism.” Mot. to Strike (dkt. 49) at 3. LLNS argues that responding to such allegations would 15 create tension with its obligations regarding classified information, see id. at 5–6, and identifies 16 five categories of allegations it seeks to strike:

17 Category 1: Allegations concerning the alleged practical application of Plaintiff’s and Dr. Vitello’s computational modeling research to 18 nuclear weapons, including allegations that Dr. Vitello’s allegedly faulty methodology may ultimately result in wasted costs for the 19 design of the W80-4 nuclear warhead: FAC ¶¶ 12, 16, 20, 23–25, 30, 32, 49, 54, 66–67. 20 Category 2: Historical and background allegations concerning the 21 United States’ Stockpile Stewardship Program and alleged problems with the W80 and B61 nuclear weapons: FAC ¶¶ 15–17, 19, 23, 25– 22 32.

23 Category 3: Other allegations that explicitly or implicitly connect LLNL’s work generally to nuclear weapons or defense against 24 terrorism: FAC ¶ 5, 21, 36, 68, 76- 77, 83–84.

25 Category 4: Allegations regarding the DOE/NNSA’s performance evaluation of LLNL and LLNL’s self-assessment with respect to 26 alleged work concerning nuclear weapons: FAC ¶ 105.

27 Category 5: An exhibit consisting of a written disclosure statement through 4 above regarding sensitive subject areas: Exhibit 800 to the 1 FAC. 2 Id. at 7–8. 3 According to LLNS, those allegations “have nothing to do with the alleged whistleblowing 4 activity or LLNS’s alleged response with respect to Plaintiff’s employment,” and the disclosure 5 statement included as Exhibit 800 is a “vestige of a claim that is no longer in the case”—a qui tam 6 claim that Williams withdrew after he was informed he could not bring such a claim pro se, and 7 which the Court later denied Williams leave to reassert. See id. at 9–10. LLNS asserts that it 8 might not be able to respond to the allegations at issue because it is prohibited by Department of 9 Energy policies from commenting on sensitive subject areas that contain potentially classified 10 information, even where the information at issue is itself not classified but might contribute to “the 11 ‘mosaic effect,’ which occurs when unclassified information can be pieced together to reveal 12 classified information.” Id. at 11–13. 13 Williams consents to striking some of the allegations at issue, but opposes striking many of 14 them. Opp’n to Mot. to Strike (dkt. 68) at 5–8. He apologizes for the length of his complaint, 15 noting that he mistakenly believed a complaint must include “every single item of evidence that 16 might bear on the matter,” but argues that length alone is not a basis to strike allegations. Id. at 9– 17 10. He contends that his allegations are not speculative but instead based on his experience and 18 expertise, and that even if they were speculative, that is also not a basis to strike them. Id. at 10– 19 11. As for relevance, Williams argues that the alleged relationship Vitello’s work had to the 20 nuclear weapons program is relevant to showing that it was material to LLNS’s government 21 contracts, and thus that Williams calling Vitello’s purported errors and concealment to light was 22 activity protected from retaliation under the FCA. Id. at 13–15. He contends that LLNS’s 23 invocation of a “no comment” policy regarding classified information presents a “vague and fuzzy 24 line that is clearly open to expansive interpretation,” and that LLNS is ultimately at fault for this 25 dispute because it hired Williams to perform work related to nuclear weapons without first 26 granting him a security clearance. Id. at 15–17. Williams also argues that his complaint should be 27 treated leniently in light of his pro se status, that caselaw cited by LLNS is inapposite, and that 1 LLNS argues in its reply that the actual significance of Vitello’s work is not relevant 2 because Williams’s retaliation claim does not require a showing of actual fraud on the government 3 and instead requires only that Williams reasonably believed he was engaged in protected activity, 4 Reply re Mot. to Strike (dkt. 72) at 2–3, that the alleged connection to nuclear weapons programs 5 would be overly prejudicial to a jury, id. at 4, and that the burden of responding to these 6 allegations in light of LLNS’s obligations regarding classified information is significant, id. at 4– 7 7. 8 B. Analysis 9 A party may move the court to “strike from a pleading an insufficient defense or any 10 redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “The function of 11 a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from 12 litigating spurious issues by dispensing with those issues prior to trial . . . .” Whittlestone, Inc. v. 13 Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (citation omitted). “Motions to strike are 14 generally regarded with disfavor because of the limited importance of pleading in federal practice, 15 and because they are often used as a delaying tactic.” Mag Instrument, Inc. v. JS Prods., Inc., 595 16 F. Supp. 2d 1102, 1106 (C.D. Cal. 2008). A motion to strike can be appropriate “when a 17 defendant cannot reasonably be expected to frame a responsive pleading or to defend against those 18 portions of the complaint,” or “if defendants would suffer undue prejudice” if the material were 19 not stricken. Fed. Deposit Ins. Corp. v. Wise, 758 F. Supp. 1414, 1420 (D. Colo. 1991). 20 “Ultimately, whether to grant a motion to strike lies within the sound discretion of the district 21 court.” Nguyen v. CTS Elecs. Mfg. Sols. Inc., No. 13-cv-03679-LHK, 2014 WL 46553, at *3 22 (N.D. Cal. Jan. 6, 2014) (citing Whittlestone, 618 F.3d at 973). 23 The question of whether Williams’s allegations are “immaterial” or “impertinent” 24 implicates the nature of his FCA retaliation claim. “An employee must prove three elements in a 25 [31 U.S.C.] § 3730(h) retaliation claim: (1) that the employee engaged in activity protected under 26 the statute; (2) that the employer knew that the employee engaged in protected activity; and 27 (3) that the employer discriminated against the employee because she engaged in protected 1 “[A]n employee engages in protected activity where (1) the employee in good faith believes, and 2 (2) a reasonable employee in the same or similar circumstances might believe, that the employer is 3 possibly committing fraud against the government.” Id. 4 The Court agrees with LLNS that the portions of the complaint it seeks to strike are 5 immaterial, in the very limited sense that they are not necessary to Williams’s complaint. Even 6 without the allegations at issue, Williams has sufficiently alleged—at least for the purpose of the 7 liberal federal pleading standard—that he reasonably and in good faith believed reporting Vitello’s 8 errors was protected under the FCA, based on his belief that Vitello’s work supported LLNS’s 9 requests for government funding, and that LLNS fired him because of that conduct. LLNS 10 appears to concede as much, and stated at the hearing that it does not intend to file a motion to 11 dismiss Williams’s complaint. 12 The fact that not all of Williams’s allegations are necessary is not in itself sufficient reason 13 to strike them. See Blevins v. Piatt, No. CV ELH-15-1551, 2015 WL 7878504, at *6 (D. Md. Dec. 14 4, 2015) (“[I]nclusion of more facts than needed to state a claim is not grounds to grant a motion 15 to strike.”). Combined with prejudice to the defendant, however, the lack of need for such 16 allegations can support a district court deciding as a matter of discretion to strike the allegations. 17 Some courts have suggested that motions to strike impertinent material should only be granted 18 where “no evidence in support of the allegation would be admissible, that the allegations have no 19 bearing on the issues in the case, and that to permit the allegations to stand would result in 20 prejudice to the movant.” Wine Markets Int’l, Inc. v. Bass, 177 F.R.D. 128, 133 (E.D.N.Y. 1998) 21 (emphasis added). This Court is aware of no binding precedent so holding. Other courts have 22 stated that motions to strike “will generally be denied unless the material in question bears no 23 possible relation to the matter at issue or the moving party shows that it will be prejudiced by its 24 inclusion.” Gov’t Guarantee Fund v. Hyatt Corp., 166 F.R.D. 321, 324 (D.V.I. Apr. 10, 1996) 25 (emphasis added). The latter view is more consistent with Rule 12(f)’s discretionary nature and its 26 purpose of streamlining litigation. If an allegation is not necessary and its inclusion in the 27 complaint imposes significant prejudice, striking the allegation may be appropriate. 1 classification status or technical accuracy of information in the open literature that is [subject to 2 certain classifications] or suspected to [subject to those classifications].” 10 C.F.R. § 1045.65. 3 Williams’s complaint includes technical descriptions of nuclear weapons, a topic that generally 4 falls within those restrictions. See 10 C.F.R. § 1045.30 (defining “Restricted Data (RD),” one of 5 the categories that is subject to § 1045.65, as including “all data concerning the design, 6 manufacture, or utilization of atomic weapons . . . except for data declassified or removed from the 7 RD category”). Under Rule 8(b)(1)(B), LLNS must “admit or deny the allegations asserted 8 against it” in Williams’s complaint. Allowing Williams’s unnecessary allegations regarding 9 nuclear weapon design and other inherently sensitive subjects to stand would needlessly create 10 conflict between LLNS’s obligation to answer under Rule 8 and its obligation to refrain from 11 commenting under § 1045.65 and similar policies.3 12 Portions of LLNS’s motion address seemingly innocuous material, and may well be 13 overbroad. See, e.g., FAC ¶ 21 (where LLNS seeks to strike the sentence “10 CFR 830 addresses 14 ‘Nuclear Safety Management,’” which merely states the title of that part of the Code of Federal 15 Regulations, and LLNS does not seek to strike a preceding citation to Part 830). But since LLNS 16 has for the most part raised legitimate and serious concerns, and granting the motion to strike will 17 lay this immediate dispute to rest and allow the case to move forward without impairing 18 Williams’s ability to pursue his claim in any practical way, simply granting the motion serves 19 Rule 12(f)’s purpose of streamlining efficient litigation, while attempting to parse a fine line of 20 which allegations at issue impose sufficient prejudice on LLNS would not. The motion to strike is 21 therefore GRANTED as to all portions of the complaint LLNS seeks to strike, and LLNS shall 22 answer Williams’s complaint as if the stricken portions were not included. 23 This order striking allegations should not be taken as excluding all evidence related to the 24 stricken material from discovery or from presentation at trial. Even without the stricken 25

26 3 While Williams asserts that he “does not care about the location, classified nature, or technical accuracy of classified information that appears in the open literature, because the open literature 27 that we are discussing here is almost entirely literature placed in the open by the Defendant itself,” ] allegations, Williams’s complaint presents a theory that Vitello’s work was important to LLNS’s 2 || government funding, and that that Williams was fired for exposing what he reasonably believed to 3 || be errors in that work that imperiled that funding. The nature of Vitello’s work, at least as 4 || Williams actually understood it or a reasonable employee in Williams’s position would have 5 || understood it, may be relevant to the reasonableness of Williams’s belief that a violation of the 6 || FCA had occurred. The actual importance of Vitello’s work to LLNS’s funding may also bear on 7 || an inference as to whether Williams exposing its purported flaws was the reason he was fired. 8 Williams may face hurdles in pursuing discovery into those matters based on the protective 9 order described above, but to the extent he is able to do so in a manner consistent with the 10 || protective order, the Court’s decision to strike certain allegations from his complaint does not 11 preclude such discovery. Similarly, while LLNS foreshadows a dispute about whether the 12 || prejudice of presenting a jury with information about nuclear weapons would outweigh its 13 || probative value under Rule 403 of the Federal Rules of Evidence, that is not a basis to impose a 14 || broad limitation on discovery, at least at the pleading stage before any dispute regarding specific 15 discovery requests has arisen, while concerns about the burdens of production and relevance of 16 || wnformation Williams might seek remain speculative. 2 17 |) V. | CONCLUSION Z 18 For the reasons discussed above, LLNS’s motion for a protective order is GRANTED in 19 || part, and the Court will separately enter a protective order consistent with this order and the 20 || undisputed portions of the parties’ proposals. LLNS’s motion to strike is GRANTED, and LLNS 21 shall disregard the stricken portions of Williams’s complaint for the purpose of its answer. 22 IT ISSO ORDERED. 23 Dated: December 14, 2021 24 5 CZ

J PH C. SPERO

25 ief Magistrate Judge 26 27 28