Opinion
CIVIL ACTION NO. 00-2313 SECTION "C" (3)
September 21, 2001
ORDER AND REASONS
Plaintiffs, Monte G. Holland, M.D., and Thomas Shealy, M.D., move the Court to review and reverse, in part, the United States Magistrate Judge's August 13, 2001, order. See Rec. Doc. 123. This order, see Rec. Doc. 121, largely maintains the terms of two earlier protective orders previously entered, on February 28, 2001 and May 7, 2001, see Rec. Docs. 46 and 96. For the reasons explained below, the Court DENIES the Plaintiffs' Motion for Partial Review.
I. BACKGROUND
On February 28, 2001, pursuant to a joint motion of the parties and their consent, the Magistrate Judge entered a protective order, requiring the Defendant to designate these documents it was providing in discovery that it considered confidential. See Rec. Doc. 46. If the Plaintiffs objected to the "confidential" designation of any document, they were to attempt to resolve the dispute with the Defendant, and, failing such, they were permitted to move the Magistrate Court to set aside the designation. The protective order also permitted the parties to modify the protective order themselves or to seek judicial modification. See Id.
On May 7, 2001, following the Defendant's motion, the Magistrate Judge entered a second protective order concerning depositions and exhibits produced in discovery in a separate, multi-district litigation ("MDL"). See Rec. Doc. 96. Those documents were subject to a protective order previously issued by the MDL court. See id.
In a subsequent motion for partial review, see Rec. Doc. 123, the Plaintiffs first sought to withdraw consent and vacate the February 2001 protective order, or, alternatively, to modify it, arguing that the Defendant had improperly designated many documents as "confidential." The Plaintiffs also sought to modify the May 2001 protective order on the basis that thousands of documents have been improperly labeled "Confidential — Attorney's Eyes Only." See id. The Plaintiffs contend that they did not contain trade secrets or proprietary information and should be permitted to be disclosed to their clients, as well as to their retained experts. See id.
On August 13, 2001, the Magistrate Judge denied the motion to vacate, but granted the Plaintiffs' alternative motion to modify both protective orders. See Rec. Doc. 121. The Magistrate Judge clarified that the producing party has the burden of proving a document's confidential nature. Moreover, the Magistrate Judge emphasized that he retained the right to revoke the protective orders and require the Defendant to seek a document-by-document confidentiality designation if the parties could not agree on the confidentiality of documents and the Magistrate Judge found that the Defendant was marking documents "confidential" without good cause. See Id.
The Plaintiffs now seek this Court's review of the August 2001 order.
II. ANALYSIS
A. Standard of Review
Federal law affords a magistrate judge broad discretion in the resolution of nondispositive pretrial matters. See Fed.R.Civ.P.72(a); 28 U.S.C. § 636(b)(1)(A). Thus, a district court reverses a magistrate judge's ruling on such matters only where the court finds the ruling to be "clearly erroneous or contrary to law." Fed.R.Civ.P. 72(a); 28 U.S.C. § 636(b)(1)(A). See also Castillo v. Frank, 70 F.3d 382, 385 (5th Cir. 1995); Moody v. Callon Petroleum Operating Co., 37 F. Supp.2d 805, 807 (B.D. La. 1999). "A finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." See United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948). Therefore, the Plaintiffs must clear a high hurdle for this Court to grant the instant motion. See Woodard v. Diamond Offshore Drilling, Inc., No. Civ.A.99-1661, 2000 WL 174889, at 1 (ED. La. 2000).
B. Discussion
1. The February 2001 Protective Order
The Magistrate Judge used the four-factor test set out in Bayer AG and Miles, Inc. v. Barr Laboratories, Inc., 162 F.R.D. 456, 462-63 (S.D. N.Y. 1995) to analyze whether to modify the February 2001 protective order. The Bayer AG court considered the following factors when a party sought, as here, modification of a stipulated protective order designed to protect matters of private interest:
(1) good cause — if good cause was shown for the original protective order, the burden is on the party seeking modification to show good cause for modification; if good cause was not shown for the original protective order, the burden of showing good cause is on the party seeking continued confidentiality protection; (2) the nature of the protective order ( i.e., narrow vs. broad, court imposed vs. court approved upon stipulation of the parties); (3) the foreseeability at the time of the original protective order of the modification now requested; and (4) the parties' reliance on the protective order. See id.
Protective orders are entered for "good cause." See F.R.C.P. 26(c).
The Plaintiffs challenge only the Magistrate's finding of good cause for the protective order. The Plaintiffs argue that as no specific finding of good cause accompanied the February 2001 protective order, the Defendant now bears the burden of establishing the need for continued protection. See H.L. Hayden Co. of N.Y., Inc. v. Siemens Med. Sys., Inc., 106 F.R.D. 551, 555 (S.D. N Y 1985). As the Plaintiffs themselves note, however, "[u]nderstandably, the Magistrate was not really forced to make a good cause finding initially because it was a consent order . . . . "Rec. Doc. 123.
Moreover, although the February 2001 protective order did not include a finding of good cause, in his August 2001 order, the Magistrate Judge did make a retroactive determination that good cause existed for the February 2001 protective order, concluding, "[d]iscovery in this . . . litigation has produced documents involving information concerning FDA certification, patent applications, and other information which may be commercially sensitive given the competitive medical device market." Rec. Doc. 121.
The Plaintiffs argue that such a general finding is not sufficient, that the Court must find that good cause exists to protect "each and every document, or, at a minimum," each class of documents. E.g., Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786-87 (3d Cir. 1994). The Plaintiffs, however, overlook the footnote that directly follows this proposition, which points out that "because of the benefits of umbrella protective orders in cases involving large-scale discovery, the court may construct a broad umbrella protective order upon a threshold showing by the movant of good cause. After delivery of the documents, the opposing party would have the opportunity to indicate precisely which documents it believed not to be confidential, and the party seeking to maintain the seal would have the burden of proof with respect to those documents." Id. at 787 n. 17 (internal citation deleted).
The February 2001 protective order sets up precisely this mechanism. See Rec. Doc. 46. It bears noting, too, that rather than forcing the Defendant to justify the confidentiality of the documents at issue when the February 2001 protective order was issued, the Plaintiffs chose to temporarily stipulate that the documents were confidential, but reserved the right to later challenge the "confidential" designation. See id.
The Plaintiffs argue now that good cause no longer exists because the Defendants have abused the discovery scheme by routinely and improperly designating documents as "confidential." See Rec. Doc. 123. The Plaintiffs submitted twenty of these documents-which they describe as publicly disseminated advertisements, correspondence, or public records documents — to the Magistrate Judge and allege that they are indicative of "a large number" of other documents improperly marked "confidential." Id. The Plaintiffs also dispute the classification of other documents concerning "stale," early-1990s technology. Id.
As to the group of 20 documents that the Plaintiffs alleged were improperly deemed confidential, the Magistrate Judge agreed in his August 2001 order that several of the documents should not have been so marked. See Rec. Doc. 121. On the other hand, he concluded that information concerning the other submitted documents was insufficient to determine the propriety of their designation as confidential. See id.
That a sample of fewer than 20 documents of the 2, 500 produced pursuant to February 2001 protective order were improperly marked confidential can not justify a conclusion that the Magistrate Judge improperly refused to vacate his protective order, particularly given that the Plaintiffs have not taken the stipulated steps called for under the consent order to challenge the "volumes" of documents allegedly improperly designated as "confidential." See Rec. Doc. 123. They do not allege that they have sought an agreement with the Defendant on the confidentiality of the "volumes" of documents or that they have moved the Magistrate Court to declare that the Defendant improperly marked the "volumes" of documents "confidential." See id. There is nothing in the Magistrate's August 2001 order that prevents the Plaintiffs from challenging in good faith the confidentiality of any document. And if the Plaintiffs choose to do so, the Defendants will be required to demonstrate the need for such confidentiality. See Rec. Doc. 46. In addition, as the Magistrate Court's August 2001 order makes clear, the Magistrate Judge remains prepared to revoke the February 2001 protective order if he finds the Defendant is marking documents as confidential without good cause. See Rec. Doc. 121.
The parties have met and resolved their disagreement on a number of documents the Defendant initially marked "confidential." See Letter from Nelson W. Wagar, III, Chopin, Wagar, Cole, Richard, Reboul Kutcher, LLP, to the Hon. Helen G. Berrigan, U.S. District Court for the Eastern District of Louisiana (Aug. 22, 2001) (on file with the court).
The Plaintiffs also argue that the Magistrate Judge's order, which provides default blanket confidentiality to the documents at issue, in essence improperly shifts the burden of proof from the party urging confidentiality to the party challenging this designation. See, e.g., Pansy, 23 F.3d at 786-87. The Plaintiffs, however, confuse the burden of production in this instance for the burden of proof. Again, the burden for justifying confidentiality rests with the Defendant. See Rec. Doc. 46. The Plaintiffs should be reminded, too, that if the Magistrate determines that the Defendant has been too liberal with its "confidentiality" stamp, he remains prepared to shift the burden of production to the Defendant. See Rec. Doc. 123.
2. The May 2001 Protective Order
The Plaintiffs next challenge the Magistrate Judge's affirmance of the May 2001 protective order regarding the confidentiality of the MDL documents. See id.
The Defendant first contends that the Plaintiffs have waived their right to object to the May 2001 protective order because they did not seek review in this Court within ten days of the order. See U.S.C. § 636(b)(1). This Court, however, retains discretion to modify the time period allowed for the filing of such objections. See Unif. Local R. of the U.S. Dist. Cts. for the E., Middle, and W. Dists. of La. 74.1M (2001). This Court, therefore, rejects the Defendant's assertion regarding the tardiness of the Plaintiffs' objection to the May 2001 protective order.
This Court thus turns to the merits of the Plaintiffs' objection to the August 2001 order's affirmance of the May 2001 protective order. The Magistrate Judge used the four-factor Bayer AG, see 162 F.R.D. at 462-63, to determine whether the May 2001 protective order should be modified. Plaintiffs challenge only the Magistrate Judge's finding on the first prong — that good cause existed for the May 2001 protective order because the MDL court had subjected the documents to its own protective order. See Rec. Doc. 121 (citing Dushkin Publishing Group, Inc. v. Kinko's Service Corp., 136 F.R.D. 334, 335-36 (D.D.C. 1991)).
Plaintiffs argue that the Magistrate Judge should have made an independent "good cause" finding, contending that he is more familiar with this case and therefore in a better position to rule on the confidentiality of documents therein than the judge in the unrelated MDL. See Tucker v. Ohtsu Tire Rubber Co., Ltd., 191 F.R.D. 495, 501 (D. Md. 2000).
That the Magistrate Judge is more familiar than the MDL judge with the need for confidentiality in this case, however, does not mean his deference to the MDL protective order is clearly erroneous. Indeed, the MDL judge may be better equipped to gauge how modifying the MDL protective order would impact the Defendant's confidentiality interests in that case.
Moreover, the need for comity is not to be downplayed, see, e.g., Dushkin, 136 F.R.D. at 334, particularly as the MDL is ongoing. Courts have specifically frowned on forcing litigants to file an action in another court to seek vacation of a protective order in that other case when that other case had already closed, see Tucker, 191 F.R.D. at 501, or where the party seeking discovery had not been able to intervene before the other case was voluntarily dismissed. See LeBlanc v. Broyhill, 123 F.R.D. 527, 530 (W.D. N.C. 1988). But as the MDL is ongoing, there presumably is nothing stopping the Plaintiffs from intervening in the MDL to seek modification of the MDL protective order under Federal Rule of Civil Procedure 24(c).
Contrary to the Plaintiffs' assertion, the MDL had not been either settled or dismissed as of the date of the Plaintiffs' motion, August 22, 2001.
III. CONCLUSION
This Court finds that the Magistrate Judge's ruling was neither "clearly erroneous" nor "contrary to law."
Accordingly,
IT IS ORDERED that the Plaintiffs' Motion for Partial Review of Magistrate Judge's MINUTE ENTRY is hereby DENIED. IT IS THUS FURTHER ORDERED that the Magistrate Judge's denial of the Plaintiffs' Motion to Withdraw Consent and Vacate Protective Orders is hereby AFFIRMED as set forth in this opinion.