BRAND ENERGY & INFRASTRUCTURE SERVICES, INC. et al v. IREX CONTRACTING GROUP et al

Filing 192

ORDER THAT THER REPORT AND RECOMMENDATION REAGRDINGS PLAINTIFFS MTOION TO MODIFY/CLARIFY THE PROTECTIVE ORDER (DOC. #129 ) IS APPROVED AND ADOPTED. PLAINTIFF'S MOTION FOR LEAVE (DOC. #123 ) IS GRANTED. PLAINTIFF'S LETTER REQUEST FOR ORAL ARGUEMENT (DOC. #127 ) IS DENIED AS MOOT. THE DEFENDANT'S OBJECTIONS TO THE REPORT AND RECOMMENDATION (DOC. #148 ) ARE OVERRULED. PLAINTIFFS' MOTION FOR LEAVE TO FILE DOCUMENTS (DOC. #164 ) IS GRANTED. PLAINTIFF'S MOTION TO MODIFY/CLARIFY THE PROTECTIVE ORDER (DOC. #111 ) IS GRANTED AND PARAGRAPH 16(c) SHALL BE STRICKEN FROM THE PROTECTIVE ORDER. PLAINTIFF'S OBJECTION TO THE REPORT AND RECOMMENDATION (DOC. #189 ) ARE OVERRULED. THE REPORT AND RECOMMENDATION REGARDING SEARCH TERMS (DOC. #180 ) IS APPROVED AND ADOPTED. PLAINTIFF'S MOTION TO SEAL (DOC. #173 ) IS GRANTED. SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 7/6/2017. 7/7/2017 ENTERED AND COPIES E-MAILED.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
BRAND ENERGY &
INFRASTRUCTURE SERVICES,
INC., et al.,
Plaintiffs,
v.

IREX CONTRACTING GROUP, et
al.,
Defendants.

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CIVIL ACTION

NO. 16-2499

ORDER
AND NOW, this 6th day of July, 2017, upon consideration of:
a)

The Plaintiffs’ Motion to Modify/Clarify the Protective Order (Doc. No.

b)

Defendants’ Response in Opposition to the Motion to Modify/Clarify the

111);

Protective Order (Doc. No. 118);
c)

Plaintiffs’ Motion for Leave to File a Reply Memorandum in Support of the

Motion to Modify/Clarify the Protective Order (Doc. No. 123);
d)

Defendants’ Response in Opposition to the Plaintiffs’ Motion for Leave

(Doc. No. 124);
e)

Plaintiffs’ Letter Request for Oral Argument (Doc. No. 127);

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f)

The Report and Recommendation of the Honorable Elizabeth T. Hey,

United States Magistrate Judge, regarding Plaintiffs’ Motion to Modify/Clarify the
Protective Order (Doc. No. 129);
g)

Defendants’ Objections to the Report and Recommendation regarding

Plaintiffs’ Motion to Modify/Clarify the Protective Order (Doc. No. 148);
h)

Plaintiffs’ Motion for Leave to File Documents in Support of Their

Response to Defendants’ Objections (Doc. No. 164);
i)

Plaintiffs’ Response to the Defendants’ Objections (Doc. No. 166);

j)

Plaintiffs’ Motion to Seal (Doc. No. 173);

k)

Defendants’ Response to Plaintiffs’ Motion for Leave to File Documents in

Support (Doc. No. 175);
l)

The parties’ epistolary submissions regarding search terms (Doc. Nos. 156,

157, 158, 159, 179);
m)

The Report and Recommendation of the Honorable Elizabeth T. Hey,

United States Magistrate Judge, regarding Search Terms (Doc. No. 180); and
n)

The plaintiffs’ Objections to the Report and Recommendation regarding

Search Terms (Doc. No. 189),
IT IS HEREBY ORDERED that:
1.

The Report and Recommendation regarding Plaintiffs’ Motion to

Modify/Clarify the Protective Order (Doc. No. 129) is APPROVED and ADOPTED.
2.

Plaintiffs’ Motion for Leave (Doc. No. 123) is GRANTED.

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3.

Plaintiffs’ Letter Request for Oral Argument (Doc. No. 127) is DENIED as

4.

The Defendants’ Objections to the Report and Recommendation regarding

moot.

Plaintiffs’ Motion to Modify/Clarify the Protective Order (Doc. No. 148) are
OVERRULED.
5.

Plaintiffs’ Motion for Leave to File Documents in Support of Their

Response to Defendants’ Objections (Doc. No. 164) is GRANTED.
6.

Plaintiffs’ Motion to Modify/Clarify the Protective Order (Doc. No. 111) is

GRANTED and Paragraph 16(c) shall be STRICKEN from the Protective Order.1

1

Plaintiffs filed a motion to modify a protective order they entered into months
ago. Plaintiffs seek modification of the protective order to limit the disclosure of
confidential information to attorneys only and not the individual defendants. Judge Hey
issued a Report and Recommendation (―R&R‖) recommending that the motion be
granted. I may only reconsider any part of a Magistrate Judge’s R&R if it is ―clearly
erroneous or contrary to law.‖ 28 U.S.C. § 636(b)(1)(A). Defendants lodge several
objections to Judge Hey’s R&R regarding the motion to modify the protective order.
Defendants contend Judge Hey erred by considering the parties’ intent in drafting
the stipulated protective order. This argument lacks merit. Judge Hey’s well-reasoned
R&R considered all of the factors for modifying a protective order as laid out in Pansy v.
Borough of Stroudsburg, 23 F.3d 772 (3d. Cir. 1994). One of these factors is reliance,
which Judge Hey aptly considered in relation to the parties’ negotiation and subsequent
treatment of the protective order. To this end, Defendants equate a federal court’s Order
with an ordinary contract entered into by private parties. (Doc. No. 148 at 6–7). Contrary
to this position, a court order is not an ordinary contract; it is a court order. Simply
because the parties agreed to its contents does not mean that it is not an order entered into
solely by the court. For these reasons, Defendants’ reliance on ordinary principles of
contract law does not help them.
Defendants’ other objections amount to mere disagreements over issues already
decided by Judge Hey. It is well-established that motions for reconsideration ―are not to
be used as an opportunity to relitigate the case; rather, they may be used only to correct
manifest errors of law or fact or to present newly discovered evidence.‖ Blystone v.
Horn, 664 F.3d 397, 415 (3d Cir. 2011). Accordingly, I will overrule these objections.
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7.

The Plaintiffs’ Objections to the Report and Recommendation regarding

Search Terms (Doc. No. 189) are OVERRULED.
8.

The Report and Recommendation regarding Search Terms (Doc. No. 180)

is APPROVED and ADOPTED.2
9.

Plaintiffs’ Motion to Seal (Doc. No. 173) is GRANTED.

BY THE COURT

/s/ Lawrence F. Stengel
LAWRENCE F. STENGEL, J.

2

Plaintiffs object to Judge Hey’s factual recitation contained in the Report and
Recommendation (―R&R‖) regarding Search Terms. None of the Plaintiffs’ objections
have any merit. Plaintiffs’ contention—that the parties disagreed about one aspect of the
protocol order—is already reflected in the Electronic Discovery Protocol Order itself.
(Doc. No. 89 at 1 n.1).
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