Technicare of Columbus LLC et al v. Gatehouse Media Ohio Holdings II, Inc. et al

Filing 38

OPINION AND ORDER granting in part and denying in part 28 Motion for Protective Order, granting 37 Motion for Extension of Time. Fact Discovery due by 9/16/2019. Dispositive Motions due by 1/31/2020. Primary Expert due by 10/16/2019. Rebuttal Expert due by 11/6/2019. Signed by Magistrate Judge Kimberly A. Jolson on 4/30/2019. (ew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
TECHNICARE OF COLUMBUS,
LLC, et al.,
Plaintiffs,
v.

Civil Action 2:18-cv-298
Judge George C. Smith
Magistrate Judge Jolson

GATEHOUSE MEDIA OHIO
HOLDINGS II, INC., et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on Defendants’ Motion for Protective Order (Doc. 28) and
the parties’ Joint Motion for Extension of Time (Doc. 37).

For the reasons that follow,

Defendants’ Motion for Protective Order (Doc. 28) is GRANTED in part and DENIED in part
and the parties’ Joint Motion for Extension of Time (Doc. 37) is GRANTED.
I.

BACKGROUND
Plaintiffs are Ohio corporations “primarily engaged in providing cleaning services to

consumers.”

(Doc. 1, ¶¶ 1–3).

Defendants Gatehouse Media Ohio Holdings II, Inc.

(“Gatehouse”) “is primarily engaged in the business of providing digital marketing services to
commercial clients.” (Id., ¶ 4). Defendant Dispatch Digital D AKA Thrive Hive, AKA Propel
Marketing (“Propel”) “is primarily engaged in the business of providing digital marketing
services to clients.” (Id., ¶ 5).
Plaintiffs contracted with Defendant Propel for online marketing services. (Id., ¶ 11).
When Defendant Gatehouse acquired Defendant Propel, it assumed that contract. (Id., ¶ 17).
The parties operated under this agreement from 2013 through 2017. (Id., ¶¶ 15, 19). During that

time, Plaintiffs became dissatisfied with Defendants’ performance. Specifically, Plaintiffs allege
that Defendants charged excessive management fees and failed to perform contractually agreed
upon services. (Id., ¶¶ 20–40).
After Defendants removed this case from state court, the parties filed a number of
amended pleadings. Defendants subsequently filed the instant Motion, which has been fully
briefed and is now ripe for resolution.
II.

DEFENDANTS’ MOTION FOR PROTECTIVE ORDER (Doc. 28)
A. Standard of Review
A district court may grant a protective order preventing the production of discovery to

protect a party or entity from “annoyance, embarrassment, oppression, or undue burden or
expense.” Fed. R. Civ. P. 26(c)(1). “To sustain a protective order under Rule 26(c), the moving
party must show ‘good cause’ for protection from one (or more) harms identified in Rule
26(c)(1)(A) ‘with a particular and specific demonstration of fact, as distinguished from
stereotyped and conclusory statements.’” In re Ohio Execution Protocol Litig., 845 F.3d 231,
236 (6th Cir. 2016), cert. denied sub nom. Fears v. Kasich, 138 S. Ct. 191, 199 L. Ed. 2d 128
(2017) (quoting Serrano v. Cintas Corp., 699 F.3d 884, 901 (6th Cir. 2012)). “Good cause exists
if ‘specific prejudice or harm will result’ from the absence of a protective order.” In re Ohio
Execution Protocol Litig., 845 F.3d at 236 (quoting Father M. v. Various Tort Claimants (In re
Roman Catholic Archbishop), 661 F.3d 417, 424 (9th Cir. 2011)). Ultimately, “Rule 26(c)
confers broad discretion on the trial court to decide when a protective order is appropriate and
what degree of protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).
“The burden of establishing good cause for a protective order rests with the movant.” Nix v.
Sword, 11 F. App’x. 498, 500 (6th Cir. 2001) (citation omitted).

B. Discussion
The parties agree a protective order should be issued in this case.

They disagree,

however, as to whether the protective order should allow Defendants to designate their pricing
information as confidential under the terms of the proposed protective order. Defendants argue
that their pricing information is categorically confidential, and Plaintiffs insist it is not. (See
generally Docs. 28, 32, 35). Defendants request that the Court enter a protective order with the
following provision:
A Party may designate a Document as CONFIDENTIAL–SUBJECT TO
PROTECTIVE ORDER upon making a good faith determination that the Document
contains information protected from disclosure by statute or that should be protected
from disclosure as confidential personnel records, business records, or such other
sensitive financial information or business records that are not publicly available,
including, but not limited to, trade secrets and proprietary pricing information and
work product.

(Doc. 28-1 at 3).
One purpose of a protective order is to establish a framework for parties to exchange
confidential information and to provide a method for the non-designating party to challenge
confidentiality designations. To the extent the proposed protective order furthers that purpose,
the Court finds that it is appropriate to enter a protective order here.
Courts, however, cannot be expected to draft protective orders that address every
conceivable dispute between parties, and they are reluctant to issue categorical decisions based
on hypotheticals without relevant context. See, e.g., Hiser v. Volkswagen Grp. of Am., Inc., No.
514CV00170TBRLLK, 2015 WL 13722955, at *1 (W.D. Ky. Dec. 23, 2015) (“[T]he Court
prefers to wait” to “determine whether to allow sharing and/or modification of the protective
order” in a “non-hypothetical context.”); Spilca v. Maryland Cas. Co., No. CV 13-360
GBW/LFG, 2013 WL 12158977, at *5 (D.N.M. Nov. 26, 2013), objections overruled, No. 13CV-360 GBW/CG, 2014 WL 12617286 (D.N.M. Feb. 28, 2014) (“[T]he Court is unable to grant

a protective order as it cannot set hypothetical boundaries for a deposition that has not
occurred.”); Gilman v. Brown, No. S-CIV-S-05-0830 GGH, 2011 WL 5241534, at *2 (E.D. Cal.
Oct. 31, 2011) (“Defendants argue that the protective order to which their production is subject is
not sufficient to cover every scenario they can craft. That may be true of any protective order.”).
Rather than categorically designating all Defendants’ pricing information as confidential, the
better practice is to enter the parties’ proposed order with the following modification:
A Party may designate a Document as CONFIDENTIAL–SUBJECT TO
PROTECTIVE ORDER upon making a good faith determination that the Document
contains information protected from disclosure by statute or that should be protected
from disclosure as confidential personnel records, business records, or such other
sensitive financial information or business records that are not publicly available,
including, but not limited to, trade secrets.

Defendants are free to designate as confidential documents consistent with this provision
and relevant Sixth Circuit case law. Plaintiffs are free to challenge those designations consistent
with the parties’ agreed method for doing so. (See Doc. 28-1 at 7). If the parties are unable to
resolve any issues regarding confidentiality designations through the meet and confer process,
the Court will have the benefit of specific documents and the context they provide in addressing
any objections to those designations.
The parties need to make one additional modification to the proposed protective order.
Local Rule 5.2.1 provides that, “[u]nless permitted by statute, parties cannot file documents
under Seal without leave of Court.” S.D. Ohio Civ. R. 5.2.1(a). The parties’ proposed protective
order does not comply with that requirement. (See Doc. 28-1 at 6–7). The parties are therefore
ORDERED to meet and confer regarding proposed language that satisfies Local Rule 5.2.1 and
submit a revised version of the protective order that is consistent with this Opinion and Order on
or before May 3, 2019.
Defendants’ Motion is therefore GRANTED in part and DENIED in part.

III.

JOINT MOTION FOR EXTENSION OF TIME (Doc. 37)
The parties jointly represent:

To date, the Parties have worked diligently and made substantial progress with
respect to written discovery. Technicare and Gatehouse have each served written
discovery requests, exchanged written responses, and worked together in a
professional manner. The Parties, however, are awaiting the Court’s decision
regarding the terms of a protective order to govern the production of electronic
documents, and further documents productions are expected. As the fact
discovery deadline is quickly approaching, the Parties do not anticipate that they
will be able to complete all written discovery, including document productions,
and schedule, prepare for, and take depositions in accordance with the currently
schedule.
(Doc. 37 at 2).
For good cause shown, the Joint Motion is GRANTED. The case schedule is amended as
follows:
•

Fact Discovery Deadline: September 16, 2019

•

Primary Expert Disclosures: October 16, 2019

•

Rebuttal Expert Reports: November 6, 2019

•

Dispositive Motions: January 31, 2020

Following the completion of fact discovery, the parties are directed to contact the Court to
schedule a settlement conference. The Court will not grant any further extensions of these
deadlines absent extraordinary circumstances.
IV.

CONCLUSION
For the foregoing reasons, Defendants’ Motion for Protective Order (Doc. 28) is

GRANTED in part and DENIED in part and the parties’ Joint Motion for Extension of Time
(Doc. 37) is GRANTED.
IT IS SO ORDERED.

Date: April 30, 2019

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE