Cordova et al v. R&A Oysters, Inc. et al
Order re: 145 Appeal of Magistrate Judge Decision to District Court filed by Miguel Angel Fuentes Cordova, Leobardo Morales Inclan. The Magistrate Judge decision is AFFIRMED. Signed by Chief Judge William H. Steele on 6/2/2016. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
MIGUEL ANGEL FUENTES
CORDOVA, et al., etc.,
R & A OYSTERS, INC., et al.,
) CIVIL ACTION 14-0462-WS-M
This matter is before the Court on the plaintiffs’ objections to an order of
the Magistrate Judge. (Doc. 145). The defendants have filed a response and the
plaintiffs a reply, (Docs. 153, 157), and the matter is ripe for resolution. After
careful consideration, the Court concludes that the Magistrate Judge is due to be
The order at issue makes two non-dispositive rulings. (Doc. 142). A
Magistrate Judge’s ruling on a non-dispositive matter must be affirmed unless “it
has been shown that the magistrate judge’s order is clearly erroneous or contrary
to law.” 28 U.S.C. § 636(b)(1)(A); accord Fed. R. Civ. P. 72(a). As the Court has
noted, “[t]he ‘clearly erroneous or contrary to law’ standard of review is
extremely deferential. ... Relief is appropriate under the ‘clearly erroneous’ prong
of the test only if the district court finds that the Magistrate Judge abused [her]
discretion or, if after reviewing the record as a whole, the Court is left with a
definite and firm conviction that a mistake has been made. ... With respect to the
‘contrary to law’ variant of the test, an order is contrary to law when it fails to
apply or misapplies relevant statutes, case law or rules of procedure.” Wright
Transportation, Inc. v. Pilot Corp., 2013 WL 5718997 at *1 (S.D. Ala. 2013)
(internal quotes omitted).
I. Deposition Length.
The Rule 16(b) scheduling order provides, in relevant part, that “[e]ach
deposition is limited to a maximum of 7 hours for parties and experts and 4 hours
for all other depositions, unless extended by agreement of the parties ….” (Doc.
92 at 2). The plaintiffs desire to depose “two key corporate employees” of the
corporate defendant (“Fox” and “Wilson”) for seven hours, but the defendants
complained that these employees are not “parties” for purposes of the scheduling
order. The plaintiffs filed a motion to clarify the scheduling order by confirming
that the deponents qualify as parties or, in the alternative, to amend the scheduling
order to permit the deponents, if non-parties, to be deposed for seven hours
anyway. (Doc. 124). In his order resolving the motion, the Magistrate Judge
clarified that the term “party” means “a person whose name is designated on
record as a plaintiff or defendant” as well as any Rule 30(b)(6) deponent
designated by the corporate defendant. The Magistrate Judge further found that
the plaintiffs had failed to show the “good cause” necessary for an amendment to
the scheduling order under Rule 16(b)(4). (Doc. 142 at 1-2). The plaintiffs
challenge both rulings.
The plaintiffs first argue that the Magistrate Judge’s interpretation of
“party” to exclude high-level employees of the corporate defendant (except to the
extent presented as Rule 30(b)(6) deponents) constitutes an abuse of discretion and
is thus clearly erroneous. They argue that a managing agent of a corporation may
be deposed pursuant to Rule 30(b)(1) without a subpoena; that the testimony of
such a deponent may bind the corporation; that Fox and Wilson meet the test of a
managing agent; that the defendants effectively conceded the same by accepting
the deposition notices without demanding subpoenas; and that they (the plaintiffs)
intend to elicit from these deponents testimony binding on the corporate
defendant. (Doc. 145 at 2-3, 5-9).
It is not immediately apparent how an employee’s ability to bind a
corporation by her testimony transforms the employee into “the corporation” in
any meaningful sense.1 The Court, however, need not tarry over the plaintiffs’
argument, because it rests on a non sequitur. Regardless of whether an employee
may be treated as equivalent to a party for purposes of Rule 30, the relief the
plaintiffs sought from the Magistrate Judge was a clarification of what the
Magistrate Judge intended by his use of the term “party.”2
“The district court is in the best position to interpret its own orders.” Alley
v. United States Department of Health and Human Services, 590 F.3d 1195, 1202
(11th Cir. 2009) (internal quotes omitted). Thus, “[w]hen a district court interprets
its own order we are obliged to review that interpretation for abuse of discretion
and accord its interpretation deference so long as it is reasonable.” Nebula Glass
International, Inc. v. Reichhold, Inc., 454 F.3d 1203, 1211 (11th Cir. 2006).
Presumably, a judge could employ such a tortured definition of a term in his order
as to render his definition unreasonable and an abuse of discretion – say, for
example, if she defined “white” as meaning “black,” or “party” as meaning
“penguin” or “left-handed brunette.” But there is absolutely nothing odd or
unnatural about defining “party” for purposes of deposition length to mean the
That is, it is not clear that binding a corporation is the same as being the
corporation. Any agent, within the limits of his authority, can bind his principal, but one
does not often hear of an agent described on that reasoning as being the principal.
“Plaintiffs … submit this Motion … to Clarify the Meaning of “Party” in
Section 7(b) of the Order.” (Doc. 124 at 1). The Magistrate Judge was asked to
determine whether Fox and Wilson were “‘parties’ within the meaning of the Scheduling
Order.” (Id. at 2). The plaintiffs “request[ed] clarification from the Court that Fox and
Wilson are ‘parties’ for purposes of Section 7(b) of the Scheduling Order.” (Doc. 124-1
at 5). They “request[ed] clarification … regarding whether managerial employees … are
considered ‘parties’ for purposes of deposition length under Section 7(b) of the
Scheduling Order.” (Id. at 7).
named parties and (which is the same thing) the 30(b)(6) representative of a
named corporate party.
The defendants wonder, “How can the Magistrate Judge interpret his own
order incorrectly?” (Doc. 153 at 3). The question is not exactly the right one,
since it focuses on correctness rather than reasonableness, but it points out the flaw
in the plaintiffs’ argument. The plaintiffs in their reply brief do not answer the
question but simply avoid it. (Doc. 157 at 3-4). The Court, however, cannot do
“A schedule [entered under Rule 16(b)] may be modified only for good
cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The defendants,
without defining what “good cause” entails, assert that the Magistrate Judge’s
failure to find good cause for modifying the scheduling order is an abuse of
discretion and thus clearly erroneous. (Doc. 145 at 9-10).3 They argue that Fox
and Wilson are “key corporate employees who have substantial information that
relates directly to Plaintiffs’ claims,” such that they need a full seven hours to
depose them completely. (Id.).
Only two of the original six claims in this lawsuit remain: one for breach
of contract regarding the payment of promised wages and other compensation, the
other regarding a retaliatory refusal to rehire certain plaintiffs because they sought
to vindicate their FLSA rights. The plaintiffs identify Fox as a source of needed
information about: (1) how the corporate defendant estimated the hours the
plaintiffs worked; and (2) the meeting where the defendants revoked their promise
of visas for the next season. (Doc. 145 at 7).4 The defendants do not explain how
this short list of finite subjects could require an efficient lawyer seven hours to
Because the only way of showing clear error invoked by the defendants is an
abuse of discretion, (Doc. 145 at 5; Doc. 157 at 2), their appeal is so limited.
Fox will also testify as a 30(b)(6) representative regarding electronically stored
information, but that time does not count against the four hours of his non-party
deposition. (Doc. 145 at 7 & n.7).
exhaust; much less do they explain how the Magistrate Judge could have not
merely erred but have abused his broad discretion in concluding that their showing
failed to demonstrate the requisite good cause for the requested extension.
Wilson is identified as one communicating with and between defendant
Rodney Fox, government agent Connie Chavez, and the plaintiffs and other H-2B
workers. The plaintiffs wish to depose Wilson regarding what she communicated
to the plaintiffs about their terms and conditions of employment and their rehire
for the 2014-2015 season, (Doc. 145 at 8), which is reasonable but hardly seems
capable of requiring four hours to cover. The defendants note that Wilson had
responsibility to prepare and certify certain papers in connection with the H-2B
program, to communicate with Chavez about scheduling workers’ appointments,
and to send Chavez a list of workers the corporation chose to hire, (id.), but they
do not assert that they need to depose her on these matters; even had they done so,
they offer no reason to suspect they need three additional hours to address them.
Again, the defendants have done nothing to suggest that the Magistrate Judge
abused his broad discretion in ruling that their thin showing failed to demonstrate
good cause for an extension. Simply labeling the witnesses’ knowledge as “vast
and critical,” (Doc. 157 at 2), carries no burden.
The Magistrate Judge entered a protective order, jointly proposed by the
parties, addressing confidential information. (Doc. 115). The order provides in
part that, when a party challenges its opponent’s confidentiality designation and
the parties cannot informally resolve the dispute, the party asserting confidentiality
may move the Court to confirm the designation. (Id. at 7). The defendants did so
with respect to certain daily production reports and weekly payroll records that
had been discussed in the corporate defendant’s Rule 30(b)(6) deposition. (Doc.
131). The defendants asked the Magistrate Judge to “affirmatively declare that
[four certain exhibits] are Confidential Information in accordance with the terms
of” the protective order. (Id. at 4). The Magistrate Judge granted the motion,
declaring that “the exhibits at issue are Confidential and subject to the previously
entered Joint Protective Order.” (Doc. 142 at 2).
The plaintiffs assert that the Magistrate Judge’s ruling is both clearly
erroneous and contrary to law, on the grounds that “there is a strong presumption
in favor of maintaining open judicial proceedings.” (Doc. 145 at 10). And so
there is, but designating discovery documents as confidential does not close any
judicial proceedings. It does not, as in the plaintiffs’ cited cases, exclude the
public from a trial or seal judicial records from the public. Whether the
defendants could insist upon the exhibits being sealed from the public were the
plaintiffs to submit them, say, in support of a motion for summary judgment or as
trial evidence, is a question not presented by the underlying motion or answered
by the Magistrate Judge’s order. See generally Suell v. United States, 32 F. Supp.
3d 1190 (S.D. Ala. 2014) (discussing agreed protective orders, how they
“adequately address the interests of the parties,” and how the public has certain
rights concerning access to filed discovery materials despite such orders).5
In a similar vein, the plaintiffs protest that the Magistrate Judge should
have followed the analysis of cases weighing whether to enter a protective order
under Rule 26(c). (Doc. 145 at 10-11). In this case, however, there already is a
protective order – one agreed to by the plaintiffs themselves. Whether the
Magistrate Judge properly could have declared the exhibits confidential absent the
plaintiffs’ prior agreement to the confidentiality order is immaterial.
Finally, the plaintiffs characterize the Magistrate Judge’s ruling as a “gag
order” that “preclude[s] [them] from airing some of the most important evidence
The protective order envisions that the parties will file motions for leave to file
confidential documents under seal and contemplates that the Court may deny such a
motion. (Doc. 115 at 5-6). This is consistent with governing law. See, e.g., Suell, 32 F.
Supp. 3d at 1192 (an agreed protective order to file certain materials only under seal does
not bind a court or permit it to ignore the public’s constitutional and common-law rights
of access to filed materials).
of their case in a public forum,” even as the defendants allegedly make public
misrepresentations which those documents could refute or undermine. (Doc. 145
at 11-12). What they complain of, however, is simply the predictable result of
agreeing to a confidentiality order.
Thanks to that order, the only question before the Magistrate Judge was
whether the exhibits fell within any of the categories of “confidential information”
identified in the agreed order. (Doc. 115 at 2). In their principal brief, however,
the plaintiffs do not argue or even suggest that the exhibits at issue fall outside
these categories. In their reply brief they change tack, arguing that the disputed
exhibits do not constitute “confidential information” under the protective order.
(Doc. 157 at 4-6). As the Court has stated on many occasions (and three times in
this very lawsuit),6 absent a good reason for doing otherwise, it will follow the
general rule nationally and not consider an argument first raised in a reply brief.
Because the plaintiffs have offered no reason for failing to advance this argument
in their principal brief, the Court will not consider it. At any rate, their tepid effort
falls far short of demonstrating that the Magistrate Judge’s characterization of the
exhibits as confidential information is clearly erroneous or contrary to law.7
Cordova v. R&A Oysters, Inc., ___ F. Supp. 3d ___, 2016 WL 951570 at *1 n.1
(S.D. Ala. 2016); Cordova v. R&A Oysters, Inc., 101 F. Supp. 3d 1192, 1198 (S.D. Ala.
2015); Cordova v. R&A Oysters, Inc., 2015 WL 4523998 at *3 (S.D. Ala. 2015).
The plaintiffs merely posit that, because the exhibits can be characterized as
payroll records of the plaintiffs (which are non-confidential), they cannot also be
characterized as containing proprietary information and/or certain financial information
(which is confidential), or that, even if they can be characterized both ways, the nonconfidential characterization controls. (Doc. 157 at 5). Clearly, though, a document can
fall within multiple categories, and the plaintiffs have done nothing to demonstrate that,
in such an event, the non-confidential category governs. Since the express purpose of the
protective order is “to safeguard any confidential or proprietary information involved in
this case,” (Doc. 115 at 1), the plaintiffs’ construction is most improbable.
For the reasons set forth above, the Magistrate Judge’s order is affirmed.
DONE and ORDERED this 2nd day of June, 2016.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
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