Viesti Associates, Inc. v. McGraw-Hill Companies, Inc.

Filing 42

ORDER re: 35 Defendant's Motion for Blanket Protective Order Governing Production of Discovery Materials by Magistrate Judge David L. West on 10/10/12.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge David L. West
Civil Action No. 12-CV-00668-WYD-DLW
VIESTI ASSOCIATES, INC.,
Plaintiff,
vs.
THE McGRAW-HILL COMPANIES, INC., and
JOHN DOE PRINTERS 1 - 10,
Defendants.

ORDER RE: DEFENDANT’S MOTION FOR BLANKET PROTECTIVE ORDER
GOVERNING PRODUCTION OF DISCOVERY MATERIALS [DOC. #35]

ORDER ENTERED BY MAGISTRATE JUDGE DAVID L. WEST
Defendant has filed a Motion for Blanket Protective Order Governing Production of
Discovery Materials [Doc. #35], due to the non-public trade secret and sensitive commercial nature
of the information. Defendant requests that the following documents be subject to a protective
order:
1. Documents showing gross revenues,
2. Documents showing “pre-publication” projections or estimates of the printing, sales
and/or distribution quantities for each of the books,
3. Specific sales results for the individual products and book components that are related to
the text book titles in issue, and
4. Defendant’s internal costs concerning production of the books,
5. Print-run information evidencing success of specific text books.

Plaintiff specifically objects to a protective order for print-run information as it has been
previously disclosed by Defendant and not subject to F.R.C.P. 26(c) protection. Plaintiff argues that
the definition of “confidential” in a protective order should not be used to pre-determine what
qualifies as confidential, but rather the protective order state that confidential information is
information that qualifies for protection per 26(c). The second issue is, in the case of a dispute over
a confidential designation, whether the designating party or the receiving party has the burden of
moving for protection initially. Defendant argues that it is appropriate to place on Plaintiff
(objecting receiving party) the preliminary burden of moving forward with a motion challenging
a confidential designation, however, agreeing the underlying burden of persuasion rests on the
designating party. The case law is split, White v. G C Servs. Ltd. P’ship., No. 08-11532, 2009 WL
174503 and Mangosoft, Inc. v. Oracle Corp., Case No. 02-CV-545-SM, 2005 WL 2203101 (D.N.H.
Sept. 9, 2005).
This Court finds that good cause is established that the following are subject to a protective
order:
1. Documents showing gross revenues,
2. Documents showing “pre-publication” projections or estimates of the printing, sales
and/or distribution quantities for each of the books,
3. Specific sales results for the individual products and book components that are related to
the text book titles in issue, and
4. Defendant’s internal costs concerning production of the books.
The question of whether or not print-run information evidencing the success of specific text
books should be protected pursuant to F.R.C.P. 26(c) is set for hearing before the Magistrate Judge

in Durango, Colorado on October 23, 2012 at 2:30 p.m., or on a date more convenient to the parties.

The Court agrees that any protective order should define “confidential” information as information
that qualifies for protection per F.R.C.P. 26(c)
The Court also agrees with the Sedona Guidelines: Best Practices Addressing Protective
Orders, Confidentiality and Public Access in Civil Cases and Motorola v. Lemko Corp., Case No.
08-C-5427, 2010 WL 2179170, that when confidentiality is challenged under a protective order, the
designating party bears the burden of showing the need to enforce the order. This Court does not
agree with a bifurcated burden shifting model. Therefore, if a dispute arises, the parting moving to
protect the document should have the burden of moving the Court to protect the document pursuant
to the protective order. The parties shall agree upon a form of Protective Order consistent with this
ruling and submit it for entry.
DATED: October 10, 2012.
BY THE COURT:
s/David L. West
United States Magistrate Judge
NOTICE: Pursuant to Fed. R. Civ. P. 72(a), “[w]ithin 14 days after being served with
a copy of the magistrate’s order, a party may serve and file objections to the order; a party
may not thereafter assign as error a defect in the magistrate judge’s order to which objection
was not timely made. The district judge to whom the case is assigned shall consider such
objections and shall modify or set aside any portion of the magistrate judge’s order found to
be clearly erroneous or contrary to law.” See 28 U.S.C. § 636(b)(1)(A) (“a judge of the court

may reconsider any pretrial matter under this subparagraph (A) where it has been shown that
the magistrate’s order is clearly erroneous or contrary to law.”).