Roytberg et al v. United States of America

Filing 11

ORDER denying 9 Motion for Reconsideration. This Court vacates the prior blanket protective order and directs production by April 20, 2016 of the concession agreement and the other agreements upon which the Government intends to rely in its contemplated motion to dismiss. This is without prejudice to a motion for protective order as to agreements other than the concession agreement. Ordered by Magistrate Judge Marilyn D. Go on 4/18/2016. (Proujansky, Josh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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FELIKS ROYTBERG and VICTORIA ROYTBERG,
Plaintiffs,
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ORDER
15-cv-5560(ENV)(MDG)

UNITED STATES OF AMERICA,
Defendant.
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Plaintiffs bring this action against the United States of
America under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) and
§ 2671 et seq., for injuries sustained by plaintiff Feliks
Roytberg when he fell in the parking lot of Gateway National
Recreation Area.

As set forth in the Government's letter request

for a pre-motion conference, the premises where the accident took
place is a sports facility leased by defendant to Arklow-FBF, LLC
d/b/a Aviator Sports and Recreation, LLC and Aviator Development
Company, LLC (collectively "Aviator").

See ct. doc. 7 at 2.

The

Government seeks to move to dismiss, in part, on the ground that
Aviator is an independent contractor under its concession
agreement with the Government.

Id.

The Government moves for reconsideration of this Court's
order, issued at a hearing held on April 14, 2016, directing the
Government to produce to plaintiff the entire concession contract
with Aviator, subject to a blanket attorneys' eyes only protective
order.

See ct. doc. 9.

The Government states that it has

produced to plaintiff the portions of the concession contract
that define Aviator's independent contractor relationship with
the Government, redacting only signatures and the franchise fee
the concessioner pays to the Government.

The Government

subsequently advised that plaintiffs' counsel agrees to this
limited production.

See ct. doc. 10.

Notwithstanding

plaintiffs' agreement to the Government's restricted production,
the motion is denied.
DISCUSSION
Local Civil Rule 6.3 provides that within 14 days of the
entry of an order a party may move for reconsideration
identifying "the matters or controlling decisions which counsel
believes the Court has overlooked."

Local Civil Rule 6.3.

The standard for granting a motion for reconsideration is
"strict."

Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d

Cir. 1995).

"[R]econsideration will generally be denied unless

the moving party can point to controlling decisions or data that
the court overlooked –- matters, in other words, that might
reasonably be expected to alter the conclusion reached by the
court."

Id.

"[A] motion to reconsider should not be granted

where the moving party seeks solely to relitigate an issue
already decided."

Id.; see In re Bear Stearns Companies, Inc.,

2011 WL 4063685, at *1-*2 (S.D.N.Y. 2011); Dira Realty, LLC/CMP
Improvements, Inc. v. Local 1031, 2010 WL 5449851, at *2-*3
(E.D.N.Y. 2010).

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At the initial conference, the Government attorney agreed to
produce the concession agreement but sought to delay production
for at least three weeks in order to redact confidential
information.

I expressed doubt that there would be any

confidential information contained in an agreement that was a
matter of public record, but, nonetheless, entered a blanket
protective order in the interim to expedite production.
In fact, federal regulations require that when the National
Park Service solicits proposals for concession contracts, it
disclose "the terms and conditions of a current concession
contract," "gross receipts of the current concession contract,"
and "franchise fees charged under the current concession
contract."

36 C.F.R. § 51.5(b), (f).

Once the new concession

contract is awarded, the proposals previously submitted may be
publicly disclosed.

See id. § 51.100.

Not only does there

appear to be little risk of prejudice resulting from disclosure
of "commercially sensitive business and pricing information" or
other information contained in the concession contract, the
commercial terms have been disclosed by one of the
concessionaires.

See Jane Gordon, Soon a Home to Flying Pucks

and Balls, N.Y. Times, October 11, 2006 (quoting one of the
developers as stating that "Aviator will pay 4% of its gross
receipts monthly to the National Park Service as part of its
concession contract").
Critically, the Government has previously publicly disclosed
the concession agreement at issue in the two cases filed in this
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Court that it cites in its pre-motion letter.

See K.V. v. United

States, No. 12-cv-1944 (MKB), DE 14-1; Yesina v. United States,
No. 11-cv-6349 (RRM), DE 11-1.

To the extent that the agreement

was ever entitled to protection from disclosure, this Court finds
no good cause to continue protection.

See Fed. R. Civ. P. 26©

("[t]he court may, for good cause, issue an order to protect a
party or person from annoyance, embarrassment, oppression, or
undue burden or expense").
I also reject the Government's belated argument that "its
employees are prohibited from disclosing an unredacted copy of
the entire contract . . . without potentially subjecting
themselves to . . . criminal sanctions."
(citing 18 U.S.C. § 1905).

See ct. doc. 9 at 3

Section 1905 permits disclosure by

government employees to the extent it is "authorized by law."
See 18 U.S.C. § 1905.

Many courts have recognized that

"[d]isclosure pursuant to the discovery rules is disclosure
'authorized by law.'"

Grumman Aerospace Corp. v. Titanium Metals

Corp. of Am., 91 F.R.D. 84, 90 (E.D.N.Y. 1981); see Diamond
Ventures, LLC v. Barreto, 452 F.3d 892, 897 (D.C. Cir. 2006) ("if
MAQ information were protected under the Trade Secrets Act, it
nonetheless could be discoverable"); Canal Auth. of State of Fla.
v. Froehlke, 81 F.R.D. 609, 613 (M.D. Fla. 1979) ("[i]t is clear
that information which is otherwise discoverable under Fed. R.
Civ. P. 26(b)(1) is information which the Government is
authorized by law to disclose"); Legal Aid Soc. of Alameda Cty.
v. Brennan, 1975 WL 11949, at *5 (N.D. Cal. 1976) ("section 1905
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can have no application" to disclosure in the course of
discovery"); Pleasant Hill Bank v. United States, 58 F.R.D. 97,
98 (W.D. Mo. 1973) ("information that is discoverable under the
Federal Rules of Civil Procedure cannot be said to be
confidential information under this provision, even if exempt
from disclosure to the public under the Freedom of Information
Act"); Exchange Nat. Bank of Chicago v. Abramson, 295 F. Supp.
87, 92 (D. Minn. 1969) ("any information that is discoverable in
a civil suit . . . under Rules 26 through 37 of the Federal Rules
of Civil Procedure cannot be said to be confidential information
within the prosecution of the above statute").
CONCLUSION
The motion for reconsideration is denied.

In light of the

foregoing, this Court vacates the prior blanket protective order
and directs production by April 20, 2016 of the concession
agreement and the other agreements upon which the Government
intends to rely in its contemplated motion to dismiss.

This is

without prejudice to a motion for protective order as to
agreements other than the concession agreement.

SO ORDERED.
Dated:

April 18, 2016
Brooklyn, New York
/s/______________________________
MARILYN D. GO
UNITED STATES MAGISTRATE JUDGE

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