Danley, et al v. Encore Capital Group, Inc et al

Filing 54

ORDER granting in part and denying in part 41 plaintiffs' Motion for immediate consideration for the unsealing of defendants' exhibits A-D and G-N. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JACOB J. DANLEY and
JEFFREY J. MACINTYRE, JR.,
Plaintiffs,
Case No. 15-CV-11535
vs.
HON. GEORGE CARAM STEEH
ENCORE CAPITAL GROUP, INC.,
MIDLAND FUNDING, LLC, and
MIDLAND CREDIT MANAGEMENT, INC.,
Defendants.
___________________________________/
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFFS’ MOTION FOR IMMEDIATE CONSIDERATION FOR
THE UNSEALING OF DEFENDANTS’ EXHIBITS A-D AND G-N [DOC. 41]
This matter comes before the court on plaintiffs’ motion for immediate
consideration for the unsealing of defendants’ exhibits to defendants’ motion to compel
arbitration. On January 20, 2016 the court entered the parties’ stipulated protective
order, which provides the procedure the parties must follow if they wish to challenge any
materials designated as protected or confidential.
The stipulated protective order provides that counsel receiving Protected
Materials and Information may challenge the designation by providing written notice to
counsel for the party producing the Protected Materials and Information. If the parties
do not agree whether the protected designation is appropriate, the counsel receiving the
Protected Materials and Information shall certify the issue to the court. At that point, the
counsel seeking to keep the information confidential shall file a motion for a
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protective order with regard to any portion of any Protected Materials and Information in
dispute.
In this case, defendants produced the documents at issue to plaintiffs, marking
them confidential pursuant to the stipulated protective order. Plaintiffs did not contest
the designation of those documents with written notice or otherwise. Defendants
requested that plaintiffs stipulate to an order allowing the documents to be filed under
seal. When plaintiffs’ counsel did not respond, defense counsel filed the documents
under seal pursuant to the protective order. After the motion and sealed exhibits were
filed by defendants’ counsel, plaintiffs filed the motion to unseal.
The stipulated protective order in this case spells out exactly how a dispute over a
protected designation is to be handled by the parties. It is clear in this case that plaintiffs
did not follow the terms of the stipulated protective order, jumping straight to filing a
motion to unseal without trying to work the issue out with opposing counsel and without
certifying the issue to the court. The court finds that plaintiffs therefore waived their
right to object to the protected designation of the documents at issue.
With regard to filing Protected Materials and Information with the court, the
stipulated protective order provides that to the extent any information to be filed with the
court reveals information claimed to be confidential under the terms of the protective
order, it must be filed under seal. “However, no document may be filed under seal
without leave of court.” The term “leave of court” refers to judicial permission to follow a
nonroutine procedure. While this could be accomplished with the filing of a motion
seeking leave, as urged by plaintiffs, the fact that defendants followed a different path to
filing the sealed documents does not require the court to order that the documents be
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unsealed. Considering the matter in the manner in which it was raised by plaintiffs in
this case, the court accepts defendants’ filing of Exhibits A, B, C, H, I, L, and M under
seal in support of their motion to compel arbitration. To their credit, in their response
brief, defendants agree that Exhibits D, G, J, K, and N are not properly designated as
confidential because they had previously been filed as unprotected exhibits to the
original motion to compel arbitration. As such, those exhibits shall be re-filed without
the confidential designation.
So ordered.
Dated: April 19, 2016
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
April 19, 2016, by electronic and/or ordinary mail.
s/Barbara Radke
Deputy Clerk

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