Opinion
Civil Action No. 01-2409-CM.
October 21, 2004
MEMORANDUM AND ORDER
This matter comes before the court on Plaintiff's Motion For Re-Designation of Certain Restricted Confidential Files (Doc. 160).
The court notes that although Magistrate Judge Waxse mentioned Plaintiff's Motion for Re-Designation (Doc. 160) in his September 29, 2004 Memorandum and Order Granting in Part and Denying in Part Plaintiff's Motion to Compel Discovery (Doc. 227), that Order did not decide the issue at hand.
I. Background
On January 2, 2002, the parties entered into a Protective Order (Doc. 32). Since then, plaintiff and defendants have communicated on several occasions about the confidentiality designation of 232 of defendants' computer files and have been unable to come to an agreement. As such, plaintiff urges the court to re-designate the computer files from "restricted confidential" status to "confidential" status. Defendants object to such re-designation.
Sections one and two of the Protective Order entered into by the parties state, in relevant part:
all documents produced . . . which documents are designated as "CONFIDENTIAL" by the producing person . . . shall be used only for purposes directly related to this action. . . . [N]either such documents nor the information contained therein shall be communicated in any manner, either directly or indirectly, to any person or entity other than the parties to this action, their attorneys, and necessary employees of the parties and their attorneys. Such documents and information contained therein may, however, be communicated to any person who had previously prepared or received any such document.
. . .
documents which are designated as "CONFIDENTIAL — ATTORNEYS ONLY" or "RESTRICTED CONFIDENTIAL" by the producing person . . . shall be kept confidential and shall be used only for purposes directly related to this action. . . . Such documents and information contained therein may, however, be communicated by any person who had previously prepared or received them.
In addition, the parties have agreed to negotiate in good faith regarding the designation of documents and the party objecting to the designation of a particular document bears the burden of submitting the document and the objection to the Court.
The court has broad discretion under the Federal Rules of Civil Procedure in both issuing a protective order and determining the specific restrictions to be imposed "as justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Fed.R.Civ.P. 26(c). As such, this court has discretion to find that "a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a designated way." Fed.R.Civ.P. 26(c)(7). See also Centurion Indus., Inc., v. Warren Steurer and Assocs., 665 F.2d 323, 325-26 (10th Cir. 1981).
II. Analysis
As a preliminary matter, the court notes that, based upon plaintiff's exhibits outlining plaintiff's and defendants' communications on this matter, plaintiff has made a good faith attempt at negotiating with defendants on this issue. Plaintiff does not specifically articulate why these particular computer files are relevant to their case. Plaintiff's motion seems to indicate that the computer files might possibly be relevant to their case but, without a re-designation to confidential status, plaintiff's employees cannot review and analyze the files to determine their relevance.
Defendants argue that re-designation might be unnecessary because the Protective Order allows restricted confidential documents to be reviewed by anyone who has previously prepared or reviewed the document and plaintiffs might have already reviewed this information on a JAZZ drive that defendant Premium Assignment Corporation (PAC) provided plaintiff prior to litigation. During the parties' communication on this matter, defendants stated that they would be willing to reconsider the computer files' confidentiality designation if plaintiff provided defendants with printouts of the contents of the JAZZ drive, thereby indirectly asking plaintiff to prove that it has not previously reviewed the 232 computer files at issue. Plaintiff responded to this request by stating that it would attempt to provide the printouts, but that time restraints required it to request the court's ruling. The court is unaware of whether plaintiff ever provided defendants with the JAZZ drive printouts.
Alternatively, defendants argue that the 232 computer files contain customer-specific information and note that plaintiff has not alleged otherwise. Significantly, however, defendants do not allege that the redesignation of such files would cause defendants irreputable harm. The existence of customer-specific information alone is not enough to justify a restricted confidential status. See Multi-Tech Sys., Inc. v. Hayes Microcomputer Prods., Inc., 800 F. Supp. 825, 852 (D. Minn. 1992) (upholding magistrate judge's decision to re-designate plaintiff's customer lists from "restricted confidential" to "confidential" because plaintiff did not offer any evidence that the lists were not generally known or readily ascertainable or that they would afford defendant a demonstrable competitive advantage). Moreover, plaintiff argues that defendants have voluntarily provided plaintiff with over 2000 pages of documents containing customer-specific information without any confidentiality restriction. Defendants did not challenge this contention.
The court also lends considerable weight to the Special Master's report, which states that defendants bear the majority of fault for discovery delays. In light of this fact and the parties' respective arguments, the court grants plaintiff's motion for re-designation. Accordingly, the court re-designates the 232 computer files as confidential.
IT IS THEREFORE ORDERED that Plaintiff's Motion For Re-Designation of Certain Restricted Confidential Files (Doc. 160) is hereby granted.
IT IS FURTHER ORDERED that plaintiff be provided the 232 computer files within five days of this Order.
Plaintiff's Motion to Re-Designate (Doc. 160) states that the Special Master is currently in possession of the files at issue. However, since plaintiff's motion was filed, the court has dismissed the Special Master, and, therefore, the Special Master presumably no longer possesses any discovery. The court is unsure which party currently possesses the 232 computer files.