OUELLETTE v. GAUDETTE et al

Filing 52

ORDER DENYING WITHOUT PREJUDICE DEFENDANT GAUDETTES MOTION TO RETAIN CONFIDENTIALITY DESIGNATIONS; re 48 MOTION to Retain Confidentiality Designations By JUDGE D. BROCK HORNBY. (jib)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
LAWRENCE OUELLETTE,
PLAINTIFF
V.

NORMAN GAUDETTE, in his
individual capacity; ROGER
BEAUPRE, in his official capacity
as Chief of Police for the Biddeford
Police Department and in his
individual capacity; and CITY OF
BIDDEFORD,
DEFENDANTS

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CIVIL NO. 2:16-CV-53-DBH

ORDER DENYING WITHOUT PREJUDICE DEFENDANT GAUDETTE’S
MOTION TO RETAIN CONFIDENTIALITY DESIGNATIONS
In this case, there is a pending dispute involving confidentiality
designations on all the papers contained in the defendant’s lawyer’s file compiled
during an investigation of the defendant in the 1990s. The defendant’s motion
to retain confidentiality designations is DENIED WITHOUT PREJUDICE to its renewal
after following the proper procedural steps.
According to the legal memoranda (the lawyers have not filed any of the
underlying documents), the defendant’s lawyer designated his entire file
concerning

the

1990s

investigation

as

CONFIDENTIAL—SUBJECT

TO

PROTECTIVE ORDER, a designation allowed by the Consent Confidentiality
Order issued by the Magistrate Judge on February 10, 2016.

Consent

Confidentiality Order (ECF No. 10). With that designation, the documents can

be disclosed to legal counsel, the parties themselves, consultants, experts and
other categories, but not generally to third parties. Id. ¶ 5(b). The designation
is to be applied:
only after review of the documents by an attorney . . . who has in good
faith determined that the documents contain information protected from
disclosure by statute or that should be protected from disclosure as
confidential personal information, trade secrets, personnel records, or
commercial information. The designation shall be made subject to the
standards of Rule 11 and the sanctions of Rule 37 of the Maine Rules of
Civil Procedure.

Id. ¶ 3. I cannot tell whether the defendant’s lawyer followed that standard here
before he applied the designation to the file he disclosed, or merely assumed that
because the documents all were in his file, they all qualified.1
Upon receiving the documents with the designation, the plaintiff’s lawyer
objected to the designation, a procedure specified by the Confidentiality Order.
Consent Confidentiality Order ¶ 8(a) (ECF No. 10). As near as I can tell, he
objected to the designation for all the documents, although the Confidentiality
Order required him to “specify the documents to which the objection is directed
and . . . set forth the reasons for the objection as to each document or category
of documents.” Id. I cannot tell whether he did so.
The lawyers thereafter were unable to resolve the designation dispute, but
at least one of the legal memoranda suggests that they did not “meet and confer

The defendant’s lawyer argues that he had “a good-faith basis on which to designate the
documents as confidential” because they came from his file in the prior representation of
Gaudette, Def.’s Reply to Pl.’s Opp’n to Mot. to Retain Confidentiality Designations 4 (ECF No.
51), while the plaintiff’s lawyer contends that opposing counsel engaged in “blanket
designations,” Pl.’s Opp’n to Def.’s Mot. to Retain Confidentiality Designations 10 (ECF No. 50).
The defendant’s lawyer apparently did not raise attorney-client privilege or work-product
privilege as a basis for refusing to produce the documents, although he now refers to both
privileges as part of his argument that they should not be disclosed to the public. Def.’s Mot. to
Retain Confidentiality Designations 6 (ECF No. 48).

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in a good faith effort to resolve the objection by agreement,” Def.’s Reply to Pl.’s
Opp’n to Mot. to Retain Confidentiality Designations 2 (ECF No. 51), an
“obligation” the Confidentiality Order imposed on them. Consent Confidentiality
Order ¶ 8(b) (ECF No. 10).
The defendant filed his motion to retain the confidentiality designations,
concerned that the plaintiff’s lawyer wants to disclose the file contents to the
world. Def.’s Mot. to Retain Confidentiality Designations 8–9 (ECF No. 48). The
plaintiff’s lawyer intimates that he has no such intent, but needs to show the
documents to certain witnesses he plans to call. Pl.’s Opp’n to Def.’s Mot. to
Retain Confidentiality Designations 9–11 (ECF No. 50).
In the absence of agreement, the party moving to retain its confidentiality
designation “has the burden to show good cause” for the designation.2 Consent
Confidentiality Order ¶ 8(c) (ECF No. 10). “A finding of good cause must be based
on a particular factual demonstration of potential harm, not on conclusory
statements.” Anderson v. Cryovac, Inc., 805 F.2d 1, 7 (1st Cir.1986); 8A Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2035 (3d ed.
2004).
The showing of good cause for the confidentiality designation “should be
made with appropriate specifics.” 8A Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 2043 (3d ed. 2004). To that end, this Court
has ruled that a confidentiality order “contemplates specific, rather than blanket,

Federal Rule of Civil Procedure 26(c) further provides that the court “may, for good cause, issue
an order to protect a party or person from annoyance, embarrassment, oppression, or undue
burden or expense.”

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designations.” Sea Hunters, LP v. S.S. Port Nicholson, No. 2:08-cv-272-GZS,
2014 WL 2117358, at *3 (D. Me. May 21, 2014).

Although many of the

documents from the lawyer’s file may indeed merit a confidentiality designation,
the defendant’s lawyer is not entitled to summarily designate all his files as
confidential. See Officemax Inc. v. Sousa, No. Civ. 9-631, 2010 WL 3853194, at
*1 n.2 (D. Me. Sept. 28, 2010) (“The parties need to take a serious look at the
items that have been designated ‘confidential’ . . . .”); cf. Bailey v. Me. Comm’n
on Governmental Ethics & Election Practices, No. 1:11-cv-00179-JAW, 2011 WL
6444585, at *4 (D. Me. Dec. 19, 2011) (“[I]t is counsels’ burden to first review the
transcripts and designate only those portions that are alleged to be confidential.
It is not proper practice to designate the entire transcripts confidential.”). The
defendant’s lawyer has identified broad categories of the produced documents,
see Def.’s Mot. to Retain Confidentiality Designations 4 (ECF No. 48), but not
specifically shown the basis for the confidentiality designations.
This dispute obviously is not ripe for resolution. I DIRECT the defendant’s
lawyer to review each document under the standard of paragraph 3 of the
Consent Confidentiality Order. As to those documents that thereafter retain the
confidentiality designation, I direct the plaintiff’s lawyer to follow the standard of
paragraph 8(a) of the Consent Confidentiality Order, specifying the documents
to which he directs his objection and setting forth the reasons for the objection
as to each document or category. Consent Confidentiality Order ¶¶ 3, 8(a) (ECF
No. 10). Thereafter, I DIRECT the lawyers to meet in person and confer in a good
faith effort to resolve their dispute. See id. ¶ 8(b). Only thereafter can this
motion be filed, id. ¶ 8(c), and I will expect specificity as to any remaining dispute
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in terms of the document, reasons for the designation, and reasons for the
objection.
SO ORDERED.
DATED THIS 14TH DAY OF DECEMBER, 2016
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE

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