Davis v. USA Nutra Labs et al

Filing 104

ORDER by Magistrate Judge Steven C. Yarbrough denying as moot 86 Motion to Set Aside Protective Order; denying 94 Motion for Order to Show Cause. (cm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LYNN DAVIS,
Plaintiff,
v.

Case No. 15-01107 MV/SCY

GROUPON, INC.,
Defendant.

ORDER
THIS MATTER comes before the Court on Plaintiff Lynn Davis’ Motion to Set Aside
Protective Order Regarding the Identity of the Manufacturer (Doc. 86) and USA Nutra Lab’s
Motion for Order to Show Cause (Doc. 94). For the reasons discussed below, the Court DENIES
AS MOOT Plaintiff’s Motion to Set Aside the Protective Order and further DENIES USA Nutra
Lab’s Motion for Order to Show Cause.
BACKGROUND
Shortly after Plaintiff initiated the present lawsuit, former defendant USA Nutra Labs
moved to dismiss based on its contention that the Court did not have personal jurisdiction over it.
Docs. 20, 22. In response, Plaintiff requested that discovery be conducted on the issue of USA
Nutra Labs’ ties to New Mexico. Doc. 34 at 2, 16. Included in her request, Plaintiff sought
discovery regarding entities USA Nutra Labs was affiliated with and the entity who allegedly
manufactured the product at issue in this litigation. Doc. 34 at 16. USA Nutra Labs objected to
Plaintiff’s discovery requests and specifically contended that discovery into the chain of
distribution was targeted toward adding additional parties rather than determining the issue of
personal jurisdiction. Doc. 37. Although the Court initially took the matter under advisement,
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Plaintiff expressed concern that delays in regard to obtaining the requested discovery could
implicate statute of limitations issues. Doc. 38.
During the Court’s second scheduling conference, the Court concluded that it would
permit Plaintiff to engage in limited jurisdictional discovery. Doc. 45. The Court thereafter
entered an order setting the parameters of the allowable discovery. Doc. 46. During the limited
jurisdictional discovery phase, however, the parties continued to dispute the scope of discovery
permitted by the Court’s Order. See Doc. 55. The Court therefore set a hearing for October 5,
2016, to discuss modifying the limited discovery order. Doc. 62. In recognition of potential
statute of limitations issues, the Court’s Order specifically directed the parties to be prepared to
argue whether the scope of the limited jurisdictional discovery should be broadened to allow
Plaintiff to determine the identity of other potential entities allegedly at fault for Plaintiff’s
injuries. Doc. 62.
During the October 5, 2016 hearing, USA Nutra Labs strongly objected to disclosing the
identity of the manufacturer of the product. See Doc. 65. Nevertheless, the Court ultimately
ordered USA Nutra Labs to disclose the identity of the manufacturer to Plaintiff’s counsel by
November 18, 2016. Doc. 67. The Court clarified, however, that this information would be
subject to a protective order and only disclosed to Plaintiff’s counsel. Doc. 67. Consistent with
this limitation, the parties’ stipulated protective order provided that the identity of the
manufacturer would be disclosed “For Counsel Only.” Doc. 71. Following entry of the protective
order, USA Nutra Labs disclosed the identity of the manufacturer to Plaintiff’s counsel. Doc. 75.
On December 21, 2016, United States District Court Judge Martha Vazquez granted USA
Nutra Labs’ Motion and dismissed claims against it for lack of personal jurisdiction. Doc. 80. In
April 2017, Plaintiff filed suit against USA Nutra Labs, as well as DC 1 of Coral Gables, LLC,

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and John Doe Corporation in Florida. Doc. 86-2. On May 9, 2017, Plaintiff moved this Court to
lift the protective order so that it could replace “John Doe Corporation” with the identity of the
manufacturer in her Florida lawsuit. Doc. 86. USA Nutra Labs filed its response on May 22,
2017, and objected to the Court lifting the confidential status of the manufacturer’s identity.
Before the Court could rule on the Motion to Lift the Protective Order, however, Plaintiff filed
notice that she had amended her complaint in the Florida lawsuit and in so doing had disclosed
the identity of the manufacturer. Doc. 93. Owing to this disclosure, USA Nutra Labs filed a
Motion for Order to Show Cause contending that Plaintiff should be held in contempt for
violating the protective order. Doc. 94.
ANALYSIS
As an initial matter, it is clear that once that Plaintiff disclosed the identity of the
manufacturer in her Florida lawsuit, her Motion to Lift the Protective Order (Doc. 86) became
moot in so far as her requested relief was that the Court lift the protective order so that she could
name the manufacturer in her Florida lawsuit. That said, many of the arguments put forward in
briefing on the Motion to Lift the Protective Order are relevant to whether the Court should find
Plaintiff in contempt for taking action before the Court ruled on her Motion.
USA Nutra Labs initially contended in response to Plaintiff’s Motion to Lift the
Protective Order that the Court did not have jurisdiction to modify the protective order because
USA Nutra Labs was no longer a party to the action.1 Doc. 89 at 2. In its Motion for Order to
Show Cause, however, USA Nutra Labs contends that Plaintiff knowingly disobeyed a valid

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To the extent that USA Nutra Labs maintains this argument, the Court rejects it. See United Nuclear Corp. v.
Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990) (“As long as a protective order remains in effect, the court
that entered the order retains the power to modify it….And modification of a protective order, like its original entry,
is left to the discretion of the district court.”).

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court order by disclosing the identity of the manufacturer and should therefore be held in
contempt. Doc. 94.
Plaintiff, on the other hand, contends in both her initial Motion to Lift the Protective
Order and in her response to USA Nutra Labs’ Motion for Order to Show Cause that she
complied with the procedures set forth in the protective order to challenge, and ultimately
remove, the confidential status of the manufacturer’s identity. Doc. 86 at 6; Doc 96 at 3. The
relevant provision of the protective order provides that
In the event that any party to this litigation disagrees at any stage of these
proceedings with the designation of such information regarding the identity of the
manufacturer as Classified Information, the parties shall first try to resolve the
dispute in good faith on an informal basis, such as by production of redacted
copies. If the dispute cannot be resolved, the objecting party may invoke this
Protective Order by objecting in writing to the party who designated the document
or information as Classified Information. The designating party shall then have 14
days to move the court for an order preserving the designated status of the
disputed court orders otherwise [sic]. Failure to move for an order shall constitute
a termination of the status of such items as classified information.
Protective Order Regarding the Identity of the Manufacturer, Doc. 71 at § 11(a). Plaintiff
contends that she complied with this provision when she sent USA Nutra Labs a letter on April
17, 2017, requesting its position on declassifying the identity of the manufacturer. Doc. 86-1.
Plaintiff specifically stated in her letter that “we object to the information as classified, pursuant
to Paragraph 11 of the Protective Order, because there is no grounds for the identity of the
manufacturer to be private.” Doc. 86-1. Plaintiff further highlighted the fourteen day timeframe
for USA Nutra Labs to move to preserve the classified status of the manufacturer’s identity. Doc.
86-1. Given that USA Nutra Labs had been dismissed from the case, however, Plaintiff stated
that she was unsure how USA Nutra Labs would prefer to proceed and indicated that she would
likely move to lift the protective order. Doc. 86-1. Plaintiff contends that the Court should not

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hold her in contempt because USA Nutra Labs did not subsequently move to retain the classified
status of the manufacturer’s identity and her actions did not therefore violate the protective order.
The Court agrees with Plaintiff. The protective order provided that the classified status
of the manufacturer’s identity would terminate if Plaintiff sent notice to USA Nutra Labs
objecting to the classified status pursuant to Section 11(a) and USA Nutra Labs did not move
with fourteen days to retain the classified designation. See Doc. 71 at § 11(a). USA Nutra Labs
nowhere disputes this interpretation of the protective order nor that it failed to timely move to
retain the classified designation. Furthermore, to the extent USA Nutra Labs contends that it was
no longer a party to the lawsuit and was therefore not required, or was unable, to comply with
this provision, the Court notes two things. First, as evidenced by USA Nutra Labs subsequent
filings on this issue, nothing prevented USA Nutra Labs from petitioning the Court to retain the
manufacturer’s confidential status. Second, there is no evidence that USA Nutra Labs otherwise
responded to or contacted Plaintiff to object to lifting the confidential status of the
manufacturer’s identity within the relevant timeframe. In the absence of such evidence, it was
not sanctionable for Plaintiff to assume, pursuant to the protective order, that USA Nutra Labs no
longer opposed removing the confidential status of the manufacturer’s identity.
Instead of quibbling with the language of the protective order, USA Nutra Labs appears
to argue that because Plaintiff initially moved to lift the protective order she was thereafter
precluded from unilaterally disclosing the identity of the manufacturer in the absence of a court
order. See Doc. 94 at 5. Contrary to USA Nutra Labs’ argument, however, the terms of the
parties’ protective order govern the resolution of this issue. The case cited by USA Nutra Labs is
instructive on this point. In Eagle Comtronics, Inc. v. Arrow Communication Laboratories, Inc.,
the parties’ protective order provided that confidential information “shall not be used for any

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purpose other than for this action, unless authorized by the Court.” 305 F.3d 1303, 1314 (Fed
Cir. 2002). The Federal Circuit accordingly held that use of the information outside the litigation
without prior court authorization violated the protective order. Id. In contrast, the present
protective order did not include a blanket restriction on the use of the information absent court
authorization. Instead, as noted above, the onus was on USA Nutra Labs to move to continue the
classified designation once Plaintiff notified it that she objected to the designation and invoked
Section 11(a) of the protective order. By the terms of the protective order, USA Nutra Labs’
failure to do so “constitute[d] a termination of the status of such item as Classified Information.”
Doc. 71 at § 11(a). The Court therefore concludes that Plaintiff did not violate the protective
order.
That said, even were the Court to find that the protective order had been violated, the
Court would be reluctant to impose the sanctions requested by USA Nutra Labs. In addition to an
award of fees and costs, USA Nutra Labs requests that the Court order Plaintiff to voluntarily
dismiss the manufacturer from her Florida lawsuit and bar her from proceeding against it. “A
district court has great discretion when deciding how to enforce violations of its own orders.”
Eagle Comtronics, 305 at 1314-15 (citing Toledo Scale Co. v. Computing Scale Co., 261 U.S.
399, 428 (1923). When the Court ordered the disclosure of the manufacturer’s identity at the
October 5, 2016, hearing, the Court explicitly stated that the confidential designation was
intended to be temporary. The Court explained that the protective order would be “for attorney’s
eyes only with the understanding that either of you can come back to me and ask to change that
at some point, and one of those things that would cause me to alter that order would be if you’re
planning on filing a complaint against that party.” Discovery Hearing, FTR Hondo 10/5/2016,
1:24:40. Ultimately, the protective order submitted by the parties and filed by the Court included

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the procedure outlined above that obviated the need for Plaintiff to obtain the Court’s
authorization. Nevertheless, in staying discovery pending resolution of the jurisdictional issue, it
was never the Court’s intent to impair Plaintiff’s ability to discover the identity of the
manufacturer and bring a timely lawsuit against that manufacturer. As a result, the Court made
clear at the October 5, 2016 hearing that the need for Plaintiff to file a lawsuit against the
manufacturer before the running of a statute of limitations would constitute a reason to disclose
the name of the manufacturer obtained in the course of limited discovery. Given the background
of this case and the nature of the Plaintiff’s disclosure, the severe sanctions USA Nutra Labs
requests are disproportionate to the violation it alleges.
CONCLUSION
In sum, while the Court is of the opinion that the more prudent path for Plaintiff would
have been to await the Court’s decision on her Motion to Lift Protective Order, the Court
concludes that Plaintiff’s disclosure did not violate the parties’ protective order. The Court
therefore DENIES AS MOOT Plaintiff’s Motion to Lift Protective Order (Doc. 86) and further
DENIES USA Nutra Labs’ Motion for Order to Show Cause (Doc. 94).
IT IS SO ORDERED.

____________________________________
UNITED STATES MAGISTRATE JUDGE

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