Visuals Unlimited, Inc. v. John Wiley & Sons, Inc. et al

Filing 22

ORDER. With the exception of paragraphs 12, 13, and 18, the parties proposed protective order (doc. no. 18-5) is approved. Accordingly, the court has issued a protective order on this date. So Ordered by Magistrate Judge Landya B. McCafferty.(kad)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Visuals Unlimited, Inc.
v.

Civil No. 11-cv-415-LM

John Wiley & Sons, Inc.
and John Doe Printer 1-10

O R D E R
Before the court are the parties’ competing, proposed
protective orders (doc. nos. 18-3 and 18-14).

The dispute

between the parties concerns whether the party who makes the
designation that material is confidential under the protective
order (“designating party”) or the party who challenges the
designation (“objecting party”) should bear the initial burden
of bringing a dispute about a designation before the court.
Having considered the arguments made by counsel at the pretrial
conference and the memoranda filed since that conference, the
court concludes that the objecting party shall bear the initial
burden of bringing any dispute regarding designation before the
court.
The following process shall govern any such filing:
a.

The objecting party shall notify the designating party

in writing of any objection to the designation and the grounds
therefor.

b.

Within ten (10) days following the designating party’s

receipt of a written objection, the parties shall meet and
confer and attempt to reach a resolution without court
intervention.
c.

To the extent an agreement cannot be reached, the

designating party shall forward to the objecting party a
detailed written explanation for each separate document (or
category of documents) justifying the legal basis for the
designation.

The written explanation shall contain more than

mere boilerplate; it shall provide meaningful, substantive
justifications for the designation(s) at issue.

This written

explanation shall be forwarded to the objecting party no more
than ten (10) days following the meet and confer.
d.

Upon receipt of the designating party’s written

explanation, the objecting party may thereafter file a motion
bringing the dispute before the court.
e.

Once the objecting party has filed its motion, the

designating party may then file a motion supporting the
designation.

Upon request, the court will permit the objecting

party to file a reply to the designating party’s motion.
f.

The designating party shall bear the burden of

persuasion on the question of whether good cause exists for the
disputed material to continue to be treated as confidential.

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g.

Until the court issues a ruling, the disputed

document(s) shall be treated as confidential under the terms of
the protective order.
With the exception of paragraphs 12, 13, and 18, the
parties’ proposed protective order (doc. no. 18-5) is approved.1
Accordingly, the court has issued a protective order on this
date.
SO ORDERED.

__________________________
Landya McCafferty
United States Magistrate Judge
February 8, 2012
cc: Christopher P. Beall, Esq.
Jennifer Turco Beaudet, Esq.
Kathleen A. Davidson, Esq.
Jamie N. Hage, Esq.
Maurice Harmon, Esq.
Robert Penchina, Esq.
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Paragraph 12 of the parties’ proposed protective order
concerns the procedure for objecting to confidential
designations made for the purposes of pretrial discovery. The
court has edited that paragraph to reflect the content of this
order. Paragraph 13 of the proposed protective order concerns
the procedure for filing such materials under seal with the
court. Local Rule 83.11(c) governs the latter process, and the
court edited paragraph 13 to reflect that. With respect to
paragraph 18, the court deleted it. To the extent the parties
seek some sort of permanent injunctive relief with respect to
confidential material, that request is not properly before the
court in the form of a proposed protective order. In addition
to the aforementioned edits to paragraphs 12, 13, and 18, the
court has made minor stylistic edits and replaced references to
“business days” with “days” for imposing deadlines.

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