LuxeYard, Inc. v. Bell et al
ORDER granting in part 36 Defendants' Renewed Motion for Protective Order. The Clerk of Court is directed to modify and enter the proposed Protective Order (Doc. NO. 36-1) in a manner consistent with this Order, by Magistrate Judge Kathleen M. Tafoya on 6/6/14.(sgrim)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 13–cv–02990–MSK–KMT
RACHEL BELL and
This matter is before the court on “Defendants’ Renewed Motion for Protective Order.”
(Doc. No. 36, filed Mar. 13, 2014.) Plaintiff’s Response was filed on March 18, 2014 (Doc. No.
42) and Defendants’ Reply (Doc. No. 49) was filed on March 26, 2014. For the following
reasons, Defendants’ Motion is GRANTED in part.
Defendants seek to have the court enter a revised blanket protective order governing the
disclosure of confidential information during the course of discovery. (See Mot., Ex. A [Prot.
Order].) Defendants original Motion for Protective Order (Doc. No. 25) was denied because the
attached protective order did not include a mechanism by which a party could challenge the
designation of information as confidential, pursuant to Gillard v. Boulder Valley School Dist.,
196 F.R.D. 382 (D. Colo. 2000). Defendants’ revised Protective Order now complies with this
aspect of Gillard. (Prot. Order ¶ 3.)
The court is not persuaded by Plaintiff’s objections to entering the Protective Order.
First, to the extent Plaintiff argues that a protective order would prevent him from sharing
discovery with “federal authorities,” or using documents produced here in a related Texas state
court lawsuit, this case is not an appropriate mechanism for gathering information for purposes
other than preparing and trying, or settling, the instant matter. See Gillard, 196 F.R.D. at 387
(“Civil discovery is a device to allow parties to obtain information for the purpose of preparing
and trying a lawsuit. . . . [A] party has no right to make unrestricted disclosure of the
information obtained through discovery.”); Seattle Times Co v. Rhinehart, 467 U.S. 20, 34
(1984) (“Liberal discovery is provided for the sole purpose of assisting in the preparation and
trial, or the settlement, of litigated disputes”).
Second, to the extent Plaintiff argues that he may need to disclose confidential documents
to his experts, the proposed Protective Order specifically allows this, provided that the experts
agree to maintain the confidentiality of those documents. (Prot. Order ¶¶ 1(B), 7.)
Third, Plaintiff argues that some of the documents Defendants will seek to designate as
“confidential” under the Protective Order were already produced in the Texas lawsuit without
any confidentiality designation. Standing alone, however, this fact does not preclude the entry of
a protective order. The proposed Protective Order not only requires the designating party to
make confidential designations in good faith, it also includes a mechanism for the opposing party
to challenge improperly designated documents. Thus, to the extent that Plaintiff believes any of
Defendants’ putative “confidential” designations are improper, he may challenge them pursuant
to procedures outlined in the Protective Order. 1
Despite overruling Plaintiff’s objections, the court cannot approve the proposed
Protective Order in its current form. The Protective Order defines “Confidential Information” as
“any information produced by the parties during the course of discovery that is not generally
known by or disclosed to the public.” This definition is plainly overbroad; it would allow
completely innocuous information or documents to be designated as “confidential” simply
because they have not entered the public domain. Therefore, this definition will not be
countenanced by the court. Instead, the court will modify the proposed Protective Order to
define “Confidential Information” as “information that implicates common law and statutory
privacy interests.” This more restrictive definition has commonly been approved in this District
and is well-suited to the circumstances of this case. See, e.g., Fourhorn v. City & Cnty. of
Denver, 261 F.R.D. 564, 568 (D. Colo. 2009); Estate of Rice v. City and Cnty. of Denver, No.
07-cv-01571-MSK-BNB, 2008 WL 2228702, at *4 n.2 (D. Colo. May 27, 2008).
Finally, and in a related vein, the court is somewhat skeptical about the categories of
documents Defendants believe are confidential. Although the court has not reviewed any
specific documents at this juncture, it is dubious that Defendants would be harmed by unfettered
Plaintiff also argues that the Protective Order will be used “to hamstring [his] ability to present
matters to this court.” Additionally, he expresses concern that he might be subject to sanctions
for violations of the Protective Order if he is unable to show that he was not the source of
purportedly confidential documents already in the public domain. As to the first argument, the
Protective Order will not control the presentation of confidential documents to the court; Local
Rule 7.2 governs restriction of documents filed with the court. See D.C.COLO.LCivR 7.2(c)(2).
Plaintiff’s latter concern is a red herring. The court agrees with Defendants that the designating
party will bear the burden of proving a violation of the Protective Order; it will not be the
receiving party’s obligation to disprove a violation.
disclosure of their personal correspondence, correspondence with a financial advisor, or
correspondence related to commercial activity. See Fourhorn, 261 F.R.D. at 568. And, while
the fact that Defendants anticipate producing financial records constitutes good cause for
entering the Protective Order, see Gillard, 196 F.R.D. at 386, the court is skeptical that financial
records will warrant categorical protection.
Ultimately, the court need not resolve these concerns at this time because, again, the
Protective Order provides a mechanism for dispelling any unwarranted or overreaching
designations. The parties are advised, however, that they will be held strictly to the Protective
Order’s requirement that discovery materials be designated as “confidential” in good faith.
Therefore, it is
ORDERED that Defendants’ Renewed Motion for Protective Order” (Doc. No. 36) is
GRANTED in part. The Clerk of Court is directed to modify and enter the proposed Protective
Order (Doc. NO. 36-1) in a manner consistent with this Order.
Dated this 6th day of June, 2014.
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