THOMAS GLOBAL GROUP L.L.C. v. WATKINS et al

Filing 132

OPINION/ORDER granting in part and denying in part 96 Motion to Seal; granting 97 Motion for Protective Order; granting in part and denying in part 111 Motion to Seal; denying 113 Motion to Vacate ; denying 116 Motion to Strike ; denying 123 Motion to Strike. Signed by Magistrate Judge Cathy L. Waldor on 9/29/16. (DD, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

THOMAS GLOBAL GROUP L.L.C.,
Plaintiff,

Action No. 2:13-cv-4864 (SRC)(CLW)

v.
DONALD V. WATKINS, WATKINS
PENCOR,
LLC,
PENCOR-ORANGE
CORP. PENCOR-MASADA OXYNOL,
LLC, MASADA OXYNOL US-I, LLC,
VULCAN
RESOURCES,
LLC,
CONTROLLED
ENVIRONMENTAL
SYSTEMS CORP., MASADA RESOURCE
GROUP, LLC, MASADA OXYNOL, LLC,
MASADA OXYNOL US-I, LLC, OXYNOL
SOLUTIONS LIMITED, W2E
RESOURCES, S.A., MASADA
RESOURCES, LLC and DONALD V.
WATKINS, P.C.,
Defendants.

OPINION & ORDER

THIS MATTER comes before the Court on the following submissions: Defendants’
motion (ECF Nos. 97-98) for a protective order and accompanying motion (ECF No. 96) to seal;
Plaintiff’s cross-motion (ECF No. 113) to vacate or modify the parties’ discovery confidentiality
order and accompanying cross-motion (ECF No. 111) to seal; Defendants’ cross-motion (ECF No.
116) to strike the certification of Plaintiff’s counsel—a cross-motion that also serves as
Defendants’ opposition to Plaintiff’s motion to vacate and Defendants’ reply brief in support of
the motion for protective order; Plaintiff’s “opposition/sur-reply letter brief” (ECF No. 122) in
response to Defendants’ cross motion; Defendants’ motion (ECF No. 123) to strike Plaintiff’s surreply—a motion that also serves as Defendants’ reply brief in support of the cross-motion to strike;

and Plaintiff’s letter (ECF No. 124) response thereto. 1 The Court afforded the parties repeated
adjournments of the briefing schedule, ECF Nos. 107, 114-15, 117-18, heard from the parties in
various conferences, and later entertained supplemental letters. (ECF Nos. 127, 131.) All these
submissions, while voluminous, nonetheless raise discrete recurring issues amenable to brief
disposition.
First, Defendants’ motion to strike Plaintiff’s sur-reply (ECF No. 123) is denied because,
when reading Local Civil Rule 7.1(d)(6) 2 in conjunction with Rule 7.1(h), 3 the Court finds that it
would be a harsh result to strike Plaintiff’s “opposition/sur-reply letter brief.” Indeed, the Rules do
not expressly contemplate the proper procedure to be followed in the scenario presented—i.e., a
motion, followed by an opposition and cross-motion, followed by a cross-motion to strike,
followed by an opposition, followed by a motion to strike—since Rule 7.1(h) seems only to
contemplate a cross-motion filed along with the cross-moving party’s opposition papers in
response to a motion. Thus, mindful of the complex flurry of letters and motions and cross-motions
and notwithstanding Defendants’ arguments, 4 the Court echoes Plaintiff’s position, ECF No. 124,
that nothing further need be made of this facet of the parties’ briefing. Defendants’ motion to strike

1

The pending motions were preceded by Plaintiff’s motion to compel, ECF No. 71, which was terminated in
accordance with the Court’s intervening Orders and conferences. (ECF Nos. 78, 85.)
2
Rule 7.1(d)(6) provides that “[n]o sur-replies are permitted without permission of the Judge or Magistrate Judge to
whom the case is assigned.”
3
Rule 7.1(h) provides that “[a] cross-motion related to the subject matter of the original motion may be filed by the
party opposing the motion together with that party’s opposition papers and may be noticed for disposition on the same
day as the original motion, as long as the opposition papers are timely filed. Upon the request of the original moving
party, the Court may enlarge the time for filing a brief and/or papers in opposition to the cross-motion and adjourn the
original motion day. A party filing a cross-motion shall serve and file a combined brief in opposition to the original
motion and in support of the cross-motion, which shall not exceed 40 pages. No reply brief in support of the crossmotion shall be served and filed without leave of the assigned district or magistrate judge. The original moving party
shall file a single combined reply brief in support of its motion and in opposition to the cross-motion, which shall not
exceed 40 pages (in contrast to the 15-page limit for replies as provided in L. Civ. R. 7.2(b)). The provisions of
L.Civ.R. 7.1(d)(5) apply to dispositive cross-motions.”
4
Absent leave of Court, Rules 7.1(d)(3), 16.1(g)(2), and 37.1(a)(3) prohibit reply papers in relation to cross-motions,
case management motions, and discovery motions. It bears noting that Defendants’ cross-motions also serve as reply
briefs. See Defs.’ Mot., ECF No. 116-1, at 1, 6-15; Defs.’ Mot., ECF No. 123-1, at 1, 5-10 (references to the record
use page numbers assigned by CM/ECF).

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the certification of Plaintiff’s counsel (ECF No. 116) is likewise denied because the Court accepts
Defendants’ invitation, ECF No. 116-1, at 15 (citing Local Civil Rule 7.2(a)), not to entertain
speculative assertions within the contested certification. In any event, the presence or absence of
the items sought to be stricken would not alter the overall complexion of the issues presented or
the Court’s consideration thereof.
Second, Defendants’ motion to seal (ECF No. 96) and Plaintiff’s cross-motion to seal (ECF
Nos. 111-12) are granted in part and denied in part. The motions are granted insofar as they are
partially unopposed, e.g., the parties do not dispute the sealing of certain “confidential
memoranda” filed by Defendants in conjunction with their motion for a protective order. See Pl.’s
Mot., ECF No. 113-1, at 9-10; Defs.’ Mot., ECF No. 116-1, at 11, 17; Kasolas Cert., ECF No. 112,
¶ 3. Defendants’ motion is denied, however, insofar as the parties dispute Defendants’ request to
seal items already placed in the public domain. See Pl.’s Mot., ECF No. 113-1, at 9-16; Defs.’
Mot., ECF No. 116-1, at 11-13. The Court declines to seal such items because “[i]t is well
established that once confidential information has been published, it is no longer confidential.”
Janssen Prod., L.P. v. Lupin Ltd., 2014 WL 956086, at *3 (D.N.J. Mar. 12, 2014) (collecting cases)
(citations omitted). The Court likewise denies any request to seal anything that has yet to be filed.
The parties shall meet and confer within twenty-one (21) days of this Order and submit, via
CM/ECF, for the Court’s review a joint proposed order to seal and proposed findings of fact and
conclusions of law in accordance with Rule 5.3(c) and consistent with this ruling.
In addition, the Court agrees with Defendants that there is no good cause to modify or
vacate the parties’ agreed upon discovery confidentiality order because the protective order and
sealing issues are distinct and because there is no indication that the order itself is impeding
discovery here. Plaintiff’s cross-motion to vacate (ECF No. 113), accordingly, is denied with the

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parties reminded that, if a dispute regarding the discovery confidentiality order recurs, then the
parties are to meet and confer pursuant to Local Civil Rules 16.1 and 37.1 and thereafter may
present a joint letter to the Court outlining their respective positions and competing proposed
orders.
Lastly, the parties dispute Plaintiff’s various discovery demands. Despite partial resolution
through the meet and confer process, this dispute has persisted because the discovery sought is
voluminous and, in particular, because Plaintiff seeks production in New Jersey while Defendants
offer inspection in Alabama. See e.g., Pl.’s Mot., Kasolas Cert., ECF No. 71-1, ¶¶ 1, 6, 18; Defs.’
Opp., ECF No. 72, at ¶¶ 4-5, 22-25, 31-33, 35; Defs.’ Mot., ECF No. 98, at 11-13, 15-18; Pl.’s
Opp., ECF No. 113-1, at 9-11, n.2, 17-18. Though the Court declines to adopt Defendants’
characterization of Plaintiff’s requests as designed to “harass and burden,” ECF No. 72, at 13-14,
No. 98, at 16, the Court appreciates Defendants’ concern for the costs that may inhere to producing
a multitude of documents that exist only in paper form. Faced with Defendants’ repeated offers to
afford Plaintiff on-site inspection in Alabama of the discovery sought, the Court therefore finds it
prudent to grant Defendants’ motion for a protective order insofar as Plaintiff shall have access for
such inspection and copying consistent with Rule 34 of the Federal Rules of Civil Procedure. And,
while Plaintiff has not provided the Court with a sufficient basis for ordering cost-shifting on this
issue, the Court may later entertain particularized submissions regarding any extraordinary burden
or other good cause to warrant cost-shifting, provided the parties properly follow Local Civil Rules
16.1 and 37.1. The parties accordingly are cautioned to meet and confer regularly with respect to
scheduling and logistics so as to minimize the expenses incurred.

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ACCORDINGLY, IT IS on this 29th day of September, 2016,
ORDERED that Defendants’ motion (ECF No. 123) to strike and Defendants’ crossmotion (ECF No. 116) to strike are denied; and
ORDERED that Defendants’ motion (ECF No. 96) to seal and Plaintiff’s cross-motion
(ECF No. 111) to seal are granted in part and denied in part; and
ORDERED that Plaintiff’s cross-motion (ECF No. 113) to vacate is denied; and
ORDERED that Defendants’ motion (ECF No. 97) for a protective order is granted; and
FURTHER ORDERED that the Clerk shall terminate ECF Nos. 96, 97, 111, 113, 116,
and 123.

s/Cathy L. Waldor
CATHY L. WALDOR
United States Magistrate Judge

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