Anderson News, L.L.C. et al v. American Media, Inc. et al

Filing 255

OPINION & ORDER re: #103899 216 MOTION to Amend/Correct. CONCLUSION: Accordingly, Plaintiffs' motion to amend the July 17, 2013 Amended Stipulation andConfidentially Order is DENIED. SO ORDERED.(Signed by Judge Paul A. Crotty on 01/14/14) (mov) Modified on 1/28/2014 (ca).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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FILED

ANDERSON NEWS, L.L.C. and LLOYD
WHITAKER, as Assignee under an Assignment for:
the Benefit of Creditors for Anderson Services,
L.L.C.,
09 Civ. 2227 (PAC)

Plaintiffs,

OPINION & ORDER

-againstAMERICAN MEDIA, INC., BAUER, et a!.,
Defendants.

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HONORABLE PAUL A. CROTTY, United States District Judge:
On July 17, 2013, Plaintiffs Anderson News, L.L.C. and Lloyd Whitaker (collectively,
"Plaintiffs") and Defendants American Media, Inc., Bauer Publishing Company, L.P., Curtis
Circulation Company, Distribution Services, Inc., Hachette Filipacchi Media U.S., Inc., Hearst
Communications, Inc., Kable Distribution Services, Inc., Rodale, Inc., Time Inc., and
Time/Warner Retail Sales & Marketing, Inc. (collectively, "Defendants") entered into an
Amended Stipulation and Confidentiality Order (the "Protective Order"). Plaintiffs now move to
amend the Protective Order in order to allow their corporate representative, Jay R. Maier
("Maier"), to attend depositions (the "Amendment"). Plaintiffs motion is DENIED.
DISCUSSION
I.

The Amendment is Unnecessary
Plaintiffs fail to establish any reason why the Court should amend a confidentiality order

that was already negotiated and agreed to by the parties. Under the Protective Order, any
deposition transcripts, videos, or exhibits that are not deemed "Highly Confidential" are
available ten days after a deposition is taken. See Declaration of Andrew C. Bosse in Support of

Defendants' Opposition ("Bosse Decl."), Ex. A'1l5(b). As a result, the only additional
information that an amended confidentiality order could provide Maier is access to "Highly
Confidential" information. The Amendment, however, allows "any Party [toJ request exclusion
[of a client representative1if they believe in good faith that a question or questions may elicit
Highly Confidential information." Declaration of Hector Torres in Support of Plaintiffs ' Motion
("Torres Decl."), Ex. B '1l 5(c).! Thus, the Amendment would not provide Maier any greater
access to deposition materials.
Plaintiffs argue that Maier's attendance at depositions is essential due to "his extensive
experience in, and knowledge of, the industry at issue here." Plaintiffs ' Memorandum of Law in
Support of Their Motion to Amend the July 17,2013 Amended Stipulation and Confidentiality
Order ("Pl.'s Br.") at 4. In support, Plaintiffs cite to Swatch Watch, S.A. v. Aste Trading Corp.,
85-cv-7726, 1986 WL 734 (S.D.N.Y. Jan. 3, 1986), where the court modified a protective order
to allow disclosure of confidential documents to clients "who are much more knowledgeable
concerning the trade than attorneys." Id. at *6-7. But no such knowledge disparity exists here:
Plaintiffs' counsel is experienced and well-suited to represent Plaintiffs at the depositions.
Furthermore, Maier may fully participate in deposition preparations and debriefings under the
Protective Order. As a result, the Court finds the Amendment unnecessary.

II.

The Amendment Could Cause the Disclosure of "Highly Confidential" Information
Plaintiffs claim that the Amendment protects highly confidential information and

therefore "strikes a fair and reasonable balance between plaintiffs ' rights and defendants' need to
protect against the disclosure of information." See Pl.'s Br. at 4. But, despite the Amendment's

1 Although the Protective Order provides for release of deposition transcripts and videos within ten days, Plaintiffs
point to several instances where it took longer than a month for a transcript to be released. See PI.'s Bf. at 5-6 & n.6.
But, in each instance, the delay was due to designation of that deposition as "Highly Confidential." The
Amendment does not remedy this problem because Maier can still be excluded from "Highly Confidential"
depositions. See Torres Decl. , Ex. B ~ 5(c).

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confidentiality protections, Maier could still be exposed to "Highly Confidential" information
during the depositions. It would be difficult for an attorney- in the midst of a deposition- to
determine whether questioning would lead to the introduction of "Highly Confidential"
information. Although attorneys make a similar determination when instructing a client not to
answer a deposition question, see PI. 's Br. at 7, that information can later be excluded at trial.
Once privileged information is given to a competitor, however, the damage is already done. As a
result, any purported need for the Amendment does not justify the substantial risk that "Highly
Confidential" information will be disclosed.
Plaintiffs also try to minimize the potential impact of disclosure by arguing that the
information is "stale" and that Anderson already exited the business. See PI. 's Br. at 7-8 . In
support, Plaintiffs cite Koch v. Greenberg, where the court refused to "protect several-year-old
information without a specific explanation of the harm that would be caused by disclosure." No .
07-cv-9600, 2012 WL 1449186 at *4 (S.D.N.Y. Apr. 13,2012). Yet the plaintiff in Koch sought
to remove confidentiality designations made by the defendant. Id. at *3. Here, however,
Plaintiff seeks an Amendment that could allow "Highly Confidential" information to be
disclosed in the first instance. If Plaintiffs wish to challenge confidentiality designations, they
should follow the procedure already agreed to in the Protective Order. Furthermore, Maier is an
executive at Media Solutions LLC, a company that has ongoing business relationships with many
Defendants. See Defendants' Memorandum of Law in Opposition to Motion to Amend the July
17,2013 Amended Stipulation and Confidentiality Order at 4. Defendants therefore have reason
to shield "Highly Confidential" information from one of Media Solutions' s executives.

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CONCLUSION

Accordingly, Plaintiffs' motion to amend the July 17, 2013 Amended Stipulation and
Confidentially Order is DENIED.

Dated: New York, New York
January 14,2014
SO ORDERED

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United States Di rict Judge

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