Opinion
No. 00-248 WWD/KBM.
January 9, 2001.
ORDER
THIS MATTER comes before the Court upon Plaintiffs Objections to Portions of Order of U.S. Magistrate Judge, filed December 26, 2000 [docket # 86]. The Order, which was filed by United States Magistrate Judge Molzen on December 14, 2000 [# 73], addressed three motions filed by Plaintiff [## 47, 56, 73]. Plaintiff objects to that portion of the Order which limits Ms. Chee from having contact with her own informant witness, Ms. Dina Esquer, without Defendants counsel being present. She also contends the Order is contrary to law because it limits Plaintiffs contact with Native American customers of Southwest Hyundai, who are potential witnesses in this case.
Under Rule 72(a) of the Federal Rules of Civil Procedure the Court "shall consider [objections made by the parties] . . . and shall modify or set aside any portion of the magistrate's order found to be clearly erroneous or contrary to law." Fed.R.Civ.Pro. 72(a); see also 28 U.S.C. § 636 (b)(1)(A).
Dina Esquer (along with six other individuals), was identified by Defendant as a former managerial employee. According to Plaintiff, Ms. Esquer had voluntarily contacted Plaintiffs counsel after the filing of this lawsuit with information regarding denials of credit applications for several other Navajo customers. While I recognize that the December 14th Order determined that Ms. Esquer is indeed a non-managerial employee, Defendants identification of these employees as managerial was not found to be a willful misrepresentation. I also note that a previous court order by Judge 1/4Molzen requiring defense counsel to be present when these former employees were interviewed (see # 24) was not based on employment status but on Plaintiffs counsels involvement with a surreptitious recording incident. Notwithstanding Plaintiffs preference to have unsupervised access to Ms. Esquer, the alternatives presented by December 14th Order in the way of allowing discovery from this witness are more than sufficient.
I also find that the limitations placed on Plaintiffs ability to contact other Native American customers are tailored to respond to Plaintiffs discovery needs while at the same time protect these customers against undue intrusions into their privacy, particularly considering the nature of the information sought.
The clearly erroneous standard is intended to give the magistrate a free hand in managing discovery issues." R. Marcus E. Sherman, Complex Litigation at 643 (1985). This standard requires that the judgment be affirmed unless on the entire evidence [the Court is] left with the definite and firm conviction that a mistake has been committed. United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948); Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988). I am left with no such conviction. I find that the December 14th Order represents an appropriate exercise of discretion and should not be disturbed. WHEREFORE,
IT IS HEREBY ORDERED that Plaintiffs Objections to Portions of Order of U.S. Magistrate Judge [docket # 86] are hereby overruled.