Apalachicola Riverkeeper et al v. Taylor Energy Company, L.L.C.

Filing 278

ORDER re 213 MOTION Opposing 179 Order Granting Motion Challenging Confidentiality Designations - IT IS ORDERED that the Motion is DENIED, and the magistrate judge's decision is AFFIRMED. Signed by Judge Susie Morgan. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
APALACHICOLA RIVERKEEPER,
Plaintiff

CIVIL ACTION

VERSUS

NO. 12-337

TAYLOR ENERGY
COMPANY L.L.C., ET AL.,
Defendants

SECTION "E" (4)

ORDER
Before the Court is Defendant's Motion to Appeal1 the magistrate judge's Order2
granting Plaintiffs' motion to lift confidentiality designations.3 The parties in this case
consented to a blanket protective order, which the Court signed on January 6, 2014.4
Among other things, the protective order allows the parties to designate documents—
including deposition transcripts—as "confidential" or "restricted."5 The parties may
challenge a designation by filing a motion within thirty days of the designation.6
Defendant designated as confidential several portions of the deposition transcript
of its Rule 30(b)(6) representative, William Pecue. Plaintiff challenged the designations
in a motion before the magistrate judge. Following oral argument, the magistrate judge
granted the motion and vacated the confidentiality designations on p. 16, ln. 4 through
p. 35, ln. 5, and p. 37, ln. 25 through p. 44, ln. 5. Taylor appealed to the district court.
With the consent of the presiding district judge, a magistrate judge may

R. Doc. 213
R. Doc. 179.
3 R. Doc. 131.
4 R. Doc. 95.
5 Id. at ¶2a.
6 Id. Although Plaintiffs' motion was not filed timely, the magistrate judge found it was not deficient
under the circumstances. See R. Doc. 179, p. 5–6. Defendant has not challenged this finding.
1

2

1

adjudicate non-dispositive pre-trial motions.7 The magistrate judge is afforded broad
discretion in resolving such motions.8 The district judge may reverse only if the ruling is
"clearly erroneous or contrary to law."9 In order to meet this high standard,10 the
district judge must be "left with a definite and firm conviction that a mistake has been
committed."11
Judge Roby's ruling was neither clearly erroneous nor contrary to law. Once
Plaintiffs contested the confidentiality designations in Mr. Pecue's deposition,
Defendant bore the initial burden of demonstrating good cause for maintaining the
designations. The magistrate judge reviewed the transcript and concluded "the
deponent’s statements are general factual testimony[,] and . . . the statements do not
contain commercially sensitive information that requires the protections of Rule
26(c)."12 Having reviewed the same transcript, the Court finds this conclusion was not
clearly erroneous.
Defendant also contends the magistrate judge erred because Plaintiffs violated
the protective order by failing to meet and confer before filing their motion to
challenge.13 Citing a different paragraph in the protective order, Plaintiffs contend this
procedure is inapplicable when a party challenges the designations in a deposition
transcript.14 The protective order is admittedly ambiguous on the meet-and-confer
requirement. The Court finds the competing interpretations offered by both parties are
28 U.S.C. § 636(b)(1)(A).
McCallon v. BP Am. Prod. Co., Nos. 05–0597, C/W 05–0700, 2006 WL 3246886, at *2 (E.D. La. Nov.8,
2006).
9 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a).
10 Defendant concedes this high burden of proof. See R. Doc. 213-1, p. 5 ("Taylor acknowledges that the
standard on a Rule 72(a) motion is highly deferential.").
11 Yelton v. PHI, Inc., 284 F.R.D. 374, 376 (E.D. La. 2012) (internal quotation marks omitted).
12 R. Doc. 179, p.8.
13 See R. Doc. 95, ¶11.
14 See id. at ¶2a.
7

8

2

reasonable. The magistrate judge sided with Plaintiffs. This decision was neither clearly
erroneous nor contrary to law.15 Nonetheless, the better practice going forward is for
the parties to meet and confer before filing any motion related to the protective order.
The Court notes in passing that Defendant has not argued—either before this
Court or before the magistrate judge in the first instance—that evidence admissible at
trial16 is subject to protection during discovery.

The Court will not consider this

argument sua sponte.
CONCLUSION
For the reasons previously stated;
IT IS ORDERED that the Motion is DENIED, and the magistrate judge's
decision is AFFIRMED.
New Orleans, Louisiana, this 8th day of June, 2015.

___________ _______ ___ _______
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

Even if Plaintiffs violated the meet-and-refer requirement, the magistrate judge was within her
discretion to consider Plaintiffs' motion on the merits. The protective order does not provide a specific
remedy for a violation of the meet-and-refer requirement. Moreover, the magistrate judge noted in her
Order that "both sides have not fully complied with the terms of the Protective Order." R. Doc. 179, p. 5–6
(emphasis added). Defendant has not disputed this finding.
16 Taylor concedes the challenged deposition testimony is relevant to the parties' claims and defenses. See
R. Doc. 213-1, p.6.
15

3