Local Access, LLC v. Peerless Network, Inc.

Filing 948

ORDER granting in part and denying in part 934 Peerless's Motion to Designate CDRs as Highly Confidential; granting in part and denying in part 937, S-944 Peerless's Motion to Redesignate Discovery Materials. See PDF for details. Signed by Magistrate Judge Embry J. Kidd on 4/5/2023. (RMN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
LOCAL ACCESS, LLC,
Plaintiff,
v.

Case No: 6:17-cv-236-WWB-EJK

PEERLESS NETWORK, INC.,
Defendant.
ORDER
This cause comes before the Court on the following:
1. Peerless’s Motion to Designate CDRs as Highly Confidential (Doc. 934), filed
February 27, 2023.
2. Peerless’s Motion to Redesignate Discovery Materials (Docs. 937; S-944), filed
March 13 and 29, 2023.
Local Access has responded in opposition to both Motions. (Docs. 935, 940.)
Accordingly, they are ripe for review.
I.

CDRs (Doc. 934)
Peerless seeks the Court’s permission to designate raw switch records associated

with its CDRs as “Highly Confidential” pursuant to the Protective Order (Doc. 44).
(Doc. 934 at 1.) Peerless asserts that the raw CDRs contain customer proprietary
network information (“CPNI”) of thousands of Peerless’s customers that do not
involve Local Access, and Peerless says it is required to protect such information as
required by law, citing 47 U.S.C. § 222(a). (Id.) Peerless also states that the raw CDRs

are “competitively sensitive” for Peerless. (Id. at 2.)
To protect this information, Local Access submits that its experts will “cull out”
from the raw CDRs calls associated with Local Access. (Doc. 935 at 2.) But Local
Access asserts the Highly Confidential designation would prevent it from being able
to view the data “to guide the experts and their analysis, so the damages calculations
are properly completed and supportable by fact witnesses,” as it is in the best position
to understand its business and damages. (Id. at 1.) Local Access also points out that
this issue could be entirely avoided if Peerless only produced to Local Access the
relevant records. (Id. at 2.)
The Court finds that the unculled, raw CDRs should maintain their “Highly
Confidential” Designation, which will allow Local Access’s experts to cull the data to
calls associated with Local Access. (Doc. 44 ¶ 14(d).) Local Access has not specifically
stated that its experts would be unable to accomplish this task without its input.
Thereafter, the culled, raw CDRs will be designated “Confidential,” unless the parties
agree otherwise. This will allow Local Access to view the relevant data and guide its
experts with their analysis.
II.

Other Discovery Materials (Docs. 937; S-944)
1. Outbound Contracts
Peerless asserts that Local Access has overly designated everything related to

the outbound contracts (see, e.g., Doc. S-944-1) as “Highly Confidential” or
“Confidential,” when the outbound contracts require no designation at all. (Doc. 937
at 1.) Peerless asserts that the outbound contracts do not have confidentiality

-2-

provisions and would have expired by their own terms already. (Id.) Further, Local
Access did not designate deposition transcripts of outbound customers as confidential.
(Id. at 2.) Thus, Peerless requests that these documents lose their confidentiality
designations.
Local Access asserts that these emails are entitled to be designated as “Highly
Confidential” pursuant to the Protective Order, but that Local Access designated them
“Confidential” so that Peerless could see them. (Doc. 940 at 1.) Moreover, Local
Access wants the additional protections provided by that designation in the Protective
Order, such as preventing Peerless from using the documents for any purpose other
than in connection with this case (Id. at 1–2.) Given the history between the parties
with regard to Protective Order violations, Local Access asserts this designation
should be maintained. (Id. at 2.) Further, Local Access notes that Peerless continues
to designate references to its customers as “Confidential.” (Id.)
The undersigned is not persuaded by Peerless that the current designations
should be removed. Peerless would not necessarily have been granted access to the
outbound contracts, regardless of the fact that the contracts do not have confidentiality
provisions. Rather, Peerless has access to the outbound contracts by virtue of this
litigation. Accordingly, for purposes of this litigation, the outbound contracts are
appropriately labeled “Confidential,” as defined by the Protective Order. (Doc. 44 ¶
2.)

-3-

2. Settlement Emails
Peerless asserts that the March 31, 2017 Settlement Emails (Doc. S-944-2)
amended the relevant Homing Tandem Agreement (“HTA”) to include an additional
term. (Doc. 937 at 2.) But Peerless states that now that the HTA has ceased to be in
effect as of March 31, 2022, the Confidentiality term in the HTA does not survive and
the Settlement Emails, or at the very least, the additional term, should be made public.
(Id.)
Local Access argues that the Settlement Emails indicate that the parties would
treat the terms of the settlement and all modified terms as Confidential. (Docs. 940 at
2; 944-2 at 3 ¶ 7.) Further, Local Access asserts that the Settlement Emails do not relate
or refer to the language in the HTA regarding confidentiality. (Doc. 940 at 2.)
The undersigned finds that the “Confidential” designation of the Settlement
Emails should continue to apply, particularly where the Protective Order allows Local
Access to designate the information as “Confidential” by its own terms. Additionally,
Peerless has not pointed to a provision in the Protective Order that makes the
information non-confidential specifically because of its age.
3. CDR Summaries
Lastly, Peerless requests that summaries of Local Access’s CDRs (Doc. S-9443) be redesignated from “Highly Confidential” to “Confidential.” (Doc. 937 at 2.)
Local Access responds that it will agree to a redesignation of summaries of its CDRs
if Peerless similarly agrees to a redesignation of Peerless’s CDRs. (Doc. 940 at 2–3.)
As the CDRs are designated “Highly Confidential” under the terms of the Protective

-4-

Order, summaries therefrom retain the same designation. (Doc. 940 at 3 (citing Doc.
44 ¶ 14).)
As the undersigned found supra, Peerless’s raw CDRs should maintain their
“Highly Confidential” Designation until the data is culled by Local Access’s expert.
The culled, raw CDRs will then be designated “Confidential,” unless the parties agree
otherwise. Pursuant to the Protective Order, summaries of the data will retain the same
designation as the underlying data.
Accordingly, based on the foregoing, it is ORDERED as follows:
1. Peerless’s Motion to Designate CDRs as Highly Confidential (Doc. 934) is
GRANTED IN PART AND DENIED IN PART. The unculled, raw CDRs
should maintain their “Highly Confidential” Designation, which will allow
Local Access’s experts to cull the data to calls associated with Local Access.
Thereafter, the culled, raw CDRs will then be designated “Confidential,” unless
the parties agree otherwise.
2. Peerless’s Motion to Redesignate Discovery Materials (Docs. 937; S-944) is
GRANTED IN PART AND DENIED IN PART as follows:
a. The outbound contracts shall retain their designations.
b. The Settlement Emails shall retain their designations.
c. Pursuant to the Protective Order, the CDR Summaries will retain the
same designation as the underlying data.

-5-

DONE and ORDERED in Orlando, Florida on April 5, 2023.

-6-