Ademiluyi v. Phillips

Filing 151

ORDER Overruling 83 Motion for District Judge to Reconsider Order. Signed by Judge Miranda M. Du on 3/26/2015. (Copies have been distributed pursuant to the NEF - DC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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APRIL ADEMILUYI,

Case No. 2:14-cv-00507-MMD-CWH
Plaintiff,

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v.

ORDER
(Def’s Objection to Magistrate Judge’s
Order – dkt. no. 83)

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DAVID PHILLIPS,
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Defendant.
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I.

SUMMARY

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Before the Court is Plaintiff April Ademiluyi’s Objection regarding Magistrate

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Judge Carl W. Hoffman’s order granting Defendant David Phillips’ motion for protective

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order (“Objection”). (Dkt. no. 83.) For the reasons set out below, the Objection is

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overruled.

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II.

BACKGROUND

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A.

Relevant Fact

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This action arises from an alleged date rape on April 20, 2012, perpetrated

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against Plaintiff by Defendant while they were attending an evening event in the hotel

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suite of Daryl Parks, President of the National Bar Association (“NBA”). (Dkt. no. 11.)

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Plaintiff and Defendant are attorneys and were attending the NBA’s mid-year

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conference. (Id.) Plaintiff also alleges that Defendant initiated a civil proceeding against

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Plaintiff in Las Vegas, in which Defendant sought a protection order against Plaintiff. (Id.)

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The Amended Complaint asserts two counts of sexual battery in connection with

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the alleged date rape. (Id.) It also alleges one count of malicious prosecution, one count

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of intentional infliction of emotional distress, one count of gross negligence, and one

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count of negligence in connection with the litigation proceedings in Las Vegas. (Id.)

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B.

Discovery Dispute

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On July 8, 2014, Defendant filed a Motion for Protective Order with an attached

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proposed protective order regarding Defendant’s phone records. (Dkt. no. 71.)

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Defendant’s Motion for Protective Order was filed in response to a previous order by

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Judge Hoffman that instructed the parties to negotiate and propose a stipulated

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protective order. (Dkt. no. 65.) Plaintiff filed a response to Defendant’s motion, indicating

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that the terms of the protective order were too broad. (Dkt. no. 75.) At a hearing on

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August 5, 2014, Judge Hoffman granted Defendant’s Motion for Protective Order and

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instructed the parties to stipulate to the protective order drafted by Defendant with two

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changes. (Dkt. no. 82.)
The next day, Plaintiff filed the instant Objection. (Dkt. no. 83.) Defendant filed a

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response (dkt. no. 100) and Plaintiff filed a reply (dkt. no. 101).

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III.

LEGAL STANDARD

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Magistrate judges are authorized to resolve pretrial matters subject to district

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court review under a “clearly erroneous or contrary to law” standard. 28 U.S.C. §

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636(b)(1)(A); see also Fed. R. Civ. P. 72(a); L.R. IB 3-1(a) (“A district judge may

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reconsider any pretrial matter referred to a magistrate judge in a civil or criminal case

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pursuant to LR IB 1-3, where it has been shown that the magistrate judge’s ruling is

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clearly erroneous or contrary to law.”). “This subsection would also enable the court to

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delegate some of the more administrative functions to a magistrate, such as . . .

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assistance in the preparation of plans to achieve prompt disposition of cases in the

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court.” Gomez v. United States, 490 U.S. 858, 869 (1989). “A finding is clearly erroneous

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when although there is evidence to support it, the reviewing body on the entire evidence

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is left with the definite and firm conviction that a mistake has been committed.” United

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States v. Ressam, 593 F.3d 1095, 1118 (9th Cir. 2010) (quotation omitted). A decision is

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“contrary to law” if it applies an incorrect legal standard or fails to consider an element of
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the applicable standard. See Hunt v. National Broadcasting Co., 872 F.2d 289, 292 (9th

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Cir. 1989).

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A magistrate’s pretrial order issued under 28 U.S.C. § 636(b)(1)(A) is not subject

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to de novo review, and the reviewing court “may not simply substitute its judgment for

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that of the deciding court.” Grimes v. City & County of San Francisco, 951 F.2d 236, 241

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(9th Cir. 1991).

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IV.

DISCUSSION

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As an initial matter, Plaintiff is not clear as to which of Judge Hoffman’s orders

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she is objecting. The Objection does not ask the Court to reconsider any particular order.

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Instead, it vaguely asks the Court to “reconsider Magistrate Judge Hoffman’s final

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determination of the Defendant’s Motion for a Protection Order because the ruling is

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contrary to law.” (Dkt. no. 83 at 1.) Presumably this refers to Judge Hoffman’s August 5,

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2014, order regarding Defendant’s proposed protective order (dkt. no. 82) and not Judge

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Hoffman’s order directing the parties to negotiate and file a stipulated protective order

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(dkt. no. 65). The latter order cannot be objected to under LR IB 3-1 because it was

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entered more than fourteen (14) days before the instant Objection was filed. See LR IB

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3-1(a).

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Plaintiff objects to Judge Hoffman’s decision to issue a “protective order

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prohibiting public dissemination of only the relevant portions of the Defendant’s phone

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records . . . .” (Dkt. no. 83 at 9.) Plaintiff argues that Judge Hoffman made such a

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determination without finding “good cause” to do so. (Id.)

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Generally, the public can gain access to litigation documents and information

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produced during discovery unless the party opposing disclosure shows “good cause”

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why a protective order is necessary. In San Jose Mercury News, Inc. v. United States

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District Court–Northern District (San Jose), 187 F.3d 1096, 1103 (9th Cir. 1999), the

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court said, “[i]t is well-established that the fruits of pre-trial discovery are, in the absence

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of a court order to the contrary, presumptively public. Fed. R. Civ. P. 26(c) authorizes a

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district court to override this presumption where ‘good cause’ is shown.” Rule 26(c)
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states that “[u]pon motion by a party or by a person from whom discovery is sought ...

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and for good cause shown, the court in which the action is pending ... may make any

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order which justice requires to protect a party or person from annoyance,

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embarrassment, oppression, or undue burden or expense[.]” The Supreme Court has

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interpreted this language as conferring “broad discretion on the trial court to decide when

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a protective order is appropriate and what degree of protection is required.” Seattle

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Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).

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In his August 5, 2014, order, Judge Hoffman stated that he found “good cause to

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protect the defendant’s privacy concerns about his personal telephone and his

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commercial concerns about his business telephone numbers.” (Dkt. no. 139 at 18.) 1 The

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challenged provision of the protective order requires confidential materials to be filed

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under seal. (Id. at 13.) Plaintiff raised her concern that Defendant has not demonstrated

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“how he would be harmed if the public is able to see that he is communicating with other

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potential defendants or even potential witnesses in this case in his phone records.” (Id.

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at 14.) Judge Hoffman stated in response that, in the event Plaintiff discovers a phone

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number that is relevant to a filing with the Court, she can file it under seal and then move

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to unseal. (Id. at 16-17.)

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Plaintiff perplexingly raises this same concern again, arguing that Defendant

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failed to “show specific examples of harm he will suffer if only the relevant portions of his

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phone records that show he and others were involved in a conspiracy with public officials

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to cover up the sexual assault committed upon the Plaintiff and Jane Doe.” (Dkt. no. 83

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at 9.) The Court struggles to understand Plaintiff’s argument. The Court reads Plaintiff’s

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argument to be that the protective order should not apply to confidential material that

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would be relevant to her lawsuit. Judge Hoffman appeared to agree and indicated that a

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phone number may be relevant and the protective order could be then modified to allow

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that number into the public record. (Dkt. no. 139 at 16-17.) Indeed, the Ninth Circuit is

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He first made this determination in his initial order directing the parties to file a
protective order. (Id. at 7.) As previously stated, Plaintiff does not object to that order.

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clear that blanket orders of protection “are inherently subject to challenge and

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modification, as the party resisting disclosure generally has not made a particularized

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showing of good cause with respect to any individual document.” San Jose Mercury

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News, Inc., 187 F.3d at 1103 (citations omitted). Defendant could not make such a

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particularized showing on August 5, 2014, because the so-called “portions of his phone

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records that show he and others were involved in a conspiracy with public officials to

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cover up the sexual assault committed upon the Plaintiff and Jane Doe” were purely

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hypothetical.

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The Court finds that Judge Hoffman’s August 5, 2014, ruling was not contrary to

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law or clearly erroneous. Judge Hoffman applied the correct legal standard and

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determined, in his discretion, that there was good cause to issue a protective order.

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Defendant was not required to make a particularized showing of good cause as to

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portions of his phone records that may not exist. In the event that Plaintiff discovers

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relevant phone records that she wants to make publicly available in connection with a

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filing, she may file it under seal and move to unseal pursuant to the standards in

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Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006) as Judge

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Hoffman instructed. (Dkt. no. 139 at 16-17.)

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V.

CONCLUSION

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The Court notes that the parties made several arguments and cited to several

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cases not discussed above. The Court has reviewed these arguments and cases and

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determines that they do not warrant discussion as they do not affect the outcome of the

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Objection.

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It is hereby ordered that Plaintiff’s Objection (dkt. no. 83) is overruled.

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DATED THIS 26th day of March 2015.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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