Mojica v. Securus Technologies, Inc.
OPINION AND ORDER granting in part and denying in part 79 Motion to Amend Protective Order. Signed by Honorable Timothy L. Brooks on November 3, 2015. (tg) Modified on 11/4/2015 to change document type (rg).
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
CASE NO. 5:14-CV-5258
SECURUS TECHNOLOGIES, INC.
OPINION AND ORDER
Currently before the Court are Defendant Securus Technologies , Inc's Opposed
Motion for Entry of Amended Protective Order (Doc. 79) , Plaintiff Susan Mojica 's
Memorandum of Law in Opposition (Doc. 80) , and Defendant's Reply (Doc. 82) . On
September 28 , 2015 , the Court entered an Order (Doc. 78) directing the parties "to
provide the Court with a joint stipulation .. . by no later than October 9, 2015" to an
amendment to the Protective Order (Doc. 50) currently in place ,
so as to prohibit the viewing or sharing of the unredacted FCC Cost Study
with anyone inside or outside Ms. Mojica's litigation team-other than a very
limited number of attorneys or experts who have been specifically
designated by Ms. Mojica and specifically approved by Securus. Those
attorneys or experts so designated and approved will become personally
liable (jointly and severally with all attorneys of record) to Securus for any
breaches of confidentiality as to the FCC Cost Study.
(Doc. 78 , p. 2).
The parties made a good deal of progress negotiating a joint stipulation pursuant
to the Court's Order, but unfortunately they were unable to completely close the gap prior
to the expiration of the deadline. Instead , Defendant filed the instant Motion on the day
of the deadline, and attached its proposed amendment to the Protective Order as an
exhibit to that Motion.
Likewise , Plaintiff attached her proposed amendment to her
Opposition . Thus, for the second time in this case the Court finds dueling proposed
protective orders on its desk.
Of those two proposals, only Defendant's comports with the process that the Court
outlined in its September 28 Order.
Plaintiff proposes instead a procedure by which
Defendant pre-identifies specific individuals to which it would object being given access
to the unredacted FCC Cost Study, and by which Plaintiff identifies to the Court in camera
her retained consultants or experts who will have access to the unredacted FCC Cost
Study. Plaintiff argues that this procedure is a less intrusive but equally effective means
of balancing the parties' respective interests surrounding discovery of the unredacted
FCC Cost Study. However, the Court believes Plaintiff's proposal would not adequately
protect Defendant's confidentiality interests because , as Defendant observes , "Securus
does not know every employee who is or was directly or indirectly employed by other ICS
providers , nor every firm , independent consultant, or expert that could have a business
conflict with Securus ." (Doc. 79 , p. 7) .
Plaintiff also argues that Defendant has not made a showing of "exceptional
circumstances" that would justify requiring Plaintiff to specifically identify experts who will
be given access to the unredacted FCC Cost Study. Cf Fed . R. Civ. P. 26(b)(4)(D)(ii) ;
see also State Auto. Ins. Cos. v. Briley, 140 F.R.D. 394, 397 (E.D. Mo. 1992) (citing Kuster
v. Harner, 109 F.R.D. 372 , 375 (D . Minn . 1986) and Agar v. Stormont Hosp. and Training
Sch. for Nurses , 622 F.2d 496 , 503 (10th Cir. 1980) for the proposition that "discovery of
the identity .. . [of] non-testifying experts could only be compelled upon a showing of
exceptional circumstances"). The Court disagrees. The exceptional circumstance here
is present in the extremely sensitive and confidential nature of the unredacted FCC Cost
Study, and the corresponding disclosure the Court would require of Plaintiff for access to
it is the bare minimum necessary to safegua rd that information 's confidentiality.
Defendant's proposed language would already prohibit Defendant from contacting
experts or consultants identified by Plaintiff without Plaintiff's consent. See Doc. 79-1, p.
10 . Plaintiff's concerns can be further ameliorated by adding the following language to
the end of Section 111.L. of Defendant's proposed amended protective order: "All
notifications made pursuant to this paragraph shall be treated as CONFIDENTIAL
information by Securus in accordance with Section 111 .B. of this Protective Order."
IT IS THEREFORE ORDERED that Defendant Securus Technologies , Inc's
Opposed Motion for Entry of Amended Protective Order (Doc. 79) is GRANTED IN PART
AND DENIED IN PART as follows : the Court will enter the proposed amended protective
order that Defendant filed in this case at Doc. 79-1 , but with the additional language set
forth in the preceding paragraph of this Order. Counsel for Defendant is instructed to
email the Court, within three days of this Order's entry , an editable, non-filemarked Word
or WordPerfect copy of the proposed amended protective order that was filed in this case
at Doc. 79-1 , containing the additional IJ guage set forth upra .
IT IS SO ORDERED on
this ~ day of Nave
b r, 2015.
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