Perritt et al v. The Cupcakery, et al

Filing 71

RESPONSE in Opposition re 64 Opposed MOTION for Protective Order Regarding Confidential Information filed by Buster Baking, Ricky B Perritt, The Cupcakery, The Woodlands Baking, LLC. (Attachments: # 1 Text of Proposed Order)(Siebman, Clyde)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
RICKY B. PERRITT, Individually;
THE CUPCAKERY, LLC, a Texas Limited
Liability Company; BUSTER BAKING,
LLC, a Texas Limited Liability Company;
THE WOODLANDS BAKING, LLC,
a Texas Limited Liability Company;
CUSTOM VERSION CORPORATION,
a Texas Corporation
Plaintiffs,
v.
PAMELA F. JENKINS, Individually; and
THE CUPCAKERY LLC, a Nevada
Limited Liability Company
Defendants.

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Civil Action No. 4:11-CV-23

PLAINTIFFS’ RESPONSE BRIEF IN OPPOSITION TO
DEFENDANTS’ MOTION FOR ENTRY OF PROTECTIVE ORDER
REGARDING CONFIDENTIAL INFORMATION
Plaintiffs RICKY B. PERRITT, Individually, THE CUPCAKERY, LLC, a Texas
Limited Liability Company, BUSTER BAKING, LLC, a Texas Limited Liability Company,
THE WOODLANDS BAKING, LLC, a Texas Limited Liability Company, and CUSTOM
VERSION CORPORATION, a Texas Corporation (collectively “Plaintiffs”) file this their
Response Brief in Opposition to Defendants’ PAMELA F. JENKINS Individually and THE
CUPCAKERY LLC, a Nevada Limited Liability Company (collectively “Defendants”) Motion
For Entry of Protective Order Regarding Confidential Information (Docket No. 64). Plaintiffs
oppose the entry of the Protective Order proposed by Defendants and move the Court to enter the
Protective Order proposed by Plaintiffs which is being submitted as a Proposed Order along with
this Response pursuant to Rule CV-7(d) of the Local Civil Rules of this Court.
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I.

INTRODUCTION
Plaintiffs do not oppose the entry of a limited protective order in this case effective upon

entry by the Court; however, Plaintiffs oppose the entry of the protective order proposed by
Defendants for the reason that it is overbroad, establishes cumbersome procedures, is vague and
ambiguous and could have impermissible retroactive effect.
First, Defendants’ proposed protective order is inherently inconsistent, vague and would
incorrectly have a retroactive effect. For example, Defendants’ proposed order provides that
deposition transcripts can be designated confidential for up to twenty (20) days after the
deposition transcript is received by the deponent or their counsel regardless of whether counsel
object to disclosure and/or noted the testimony as confidential on the record at the deposition.
(Docket No. 64-3 at ¶ 4). It is hornbook law that once confidential information is disclosed any
confidential status it may have previously had is extinguished by public disclosure.

It is

Plaintiffs’ position that all information deemed “confidential” should be so designated before it
is disclosed and not after the fact. Second, Defendants’ proposed order contains provisions
regarding the manner to deal with inadvertently produced information and/or documents.
(Docket No. 64-3 at ¶ 3, p. 3-4). It is Plaintiffs’ position that inadvertent disclosures should be
addressed according to the applicable rules and case law. If provisions pertaining to inadvertent
disclosure are to be included, the level of detail required would need to be vastly expanded
beyond the terms and conditions of Defendant’s proposed order. Third, Defendants’ proposed
protective order contains provisions which create numerous practical problems; therefore they
should not be included in any protective order entered by the Court.

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Plaintiffs have made revisions to Defendants’ proposed protective order (filed with their
motion as a proposed order, Docket No. 64-3) which address these concerns.1 A copy of
Plaintiffs’ alternative proposed protective order is attached to this Response as a proposed
order.
II.

ARGUMENT AND CITATION OF AUTHORITY
A. Any Protective Order Entered by the Court Should Not Have a Retroactive Effect.
Defendants’ proposed protective order could be read to incorrectly have a retroactive

effect. For example, the procedure in Paragraph three (3) of Defendants’ proposed order does
not expressly state that material shall be designated as confidential before it is disclosed. (Docket
No. 64-3 at ¶ 3). Additionally, Paragraph four (4) of Defendants’ proposed protective order
provides that deposition transcripts can be designated confidential for up to twenty (20) days
after the deposition transcript is received by the deponent or their counsel and that deposition
transcripts shall be treated as confidential regardless of whether they are so designated. (Docket
No. 64-3 at ¶ 4). Any protective order entered by the Court should provide that all information
deemed “confidential” should be so designated in some clearly prescribed procedure before it is
disclosed and not after the fact. Such order should also make clear that failure to follow the

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  In their Motion Defendants request that the terms and provisions of the draft Protective Order,
which is attached in both Exhibits A and B to their Motion be entered in this case; however,
Defendants also submitted a proposed order with their Motion which contains different terms
and conditions than Defendants’ Exhibits A and B. Specifically, Plaintiffs note that Defendants’
proposed protective orders contained in their Exhibits A and B contain the following sentence in
Paragraph 3 on page 2-3: “The parties hereby designate the Settlement Agreement executed by
Jenkins and Perritt, dated October 28, 2009, and all documents it incorporates, the Assignment
and Assumption of Limited Liability Company Interest executed by Jenkins and Laura Santo
Pietro, dated March 14, 2007, the Assignment and Assumption of Limited Liability Interest
executed by Jenkins and Dawn Kalman, dated April 20, 2007, the Assignment and Assumption
of Limited Liability Interest executed by Jenkins and Perritt, dated April 20, 2007, as
“Confidential.” This sentence is not included in Defendants’ proposed order. Compare Docket
No. 64-1, 64-2, ¶3, p. 2-3 and Docket No. 64-3 ¶3, p. 2-3. Plaintiffs specifically object to the
inclusion of this sentence in any protective order entered by the Court.
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prescribed procedures forfeits any protection that might otherwise have existed if the prescribed
procedures had been followed. It also seems inappropriate to have the default position being that
everything in a deposition is confidential unless it is marked. Such seems calculated in a manner
to create an argument that a party can recapture alleged confidential information even if willfully
disclosed at Defendant Jenkins deposition without the protection of a protective order or
agreement between the parties.
It is black letter law that objections and protective orders concerning deposition
testimony must be raised prior to or at the taking of the deposition or they are waived. A motion
for protective order should be filed before the time to respond to the discovery request. For
example, a party should secure a protective order before the date of a deposition. See Drexel
Heritage Furnishings, Inc. v. Furniture USA, Inc., 200 F.R.D. 255, 259 (M.D.N.C. 2001); In re
Coordinated Pretrial Proceedings in Pet. Prods. Antitrust Litigation, 669 F.2d 620, 622 n.2
(10th Cir. 1982). Additionally, “an objection to an error or irregularity at an oral examination is
waived if: (i) it relates to the manner of taking the deposition, the form of a question or answer,
the oath or affirmation, a party’s conduct, or other matters that might have been corrected at that
time; and (ii) it is not timely made during the deposition.” Fed. R. Civ. P. 32 (d)(3)(B).
Accordingly, if a party is going to take the position that something said in a deposition or
some exhibit to a deposition is confidential, that party should state such on the record at the
deposition and either gain entry of a protective order or agreement of the parties to protect its
confidential nature, so that the parties, the deponent, counsel, the court reporter, and the
videographer will know contemporaneously with the disclosure of the confidential information
that it is protected by a protective order. Of course, a protective order must be in place at the
time. In the instant case, no protective order is currently in existence.

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Defendants’ proposed Paragraph seventeen (17) should not be included in any protective
order entered by the Court as it is overbroad, ambiguous and expressly contradictory to
Defendants’ proposed Paragraph three (3), which sets out the proposed manner for marking
protected material including deposition transcripts and materials. (Docket No. 64-3 at ¶ 17). If a
document not previously protected as confidential under the protective order is disclosed at a
deposition, it should not be protected and should not be subject to a protective order. If a
confidential document is presented at a deposition it should be marked as required in the
protective order and notation made on the record that the portion of the deposition discussing it is
being given pursuant to a protective order. Of course, a protective order must be in place at the
time. In the instant case, no protective order is currently in existence.
B. Inadvertent Disclosure Provisions of Applicable Law Should Apply, NOT Defendants’
Proposed Order.
Inadvertent disclosures should be addressed according to applicable law. Specifically,
the Federal Rules of Evidence include provisions regarding inadvertent disclosures. See e.g.
Fed. R. Evid. 502. There is simply no reason to alter the default rules by court order regarding
these issues; therefore, the second Paragraph under number three (3) on page three through four
of Defendants’ proposed protective order should not be included in any order entered by the
Court.

(Docket No. 64-3 ¶ 3, p. 3-4) (the paragraph beginning “All information and/or

documents that are inadvertently produced by either of the parties in connection with discovery
proceedings in the lawsuit . . .”). Necessary procedures to implementing a proper inadvertent
disclosure provision are not included in Defendants’ proposed order. If provisions pertaining to
inadvertent disclosure are to be included, the level of detail required would need to be vastly
expanded beyond the terms and conditions of Defendant’s proposed order. Issues such as the
definition of inadvertence, the standard required to show inadvertence as contrasted with
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knowing disclosure and whether negligence associated with the disclosure defeats any protection
afforded by the protective order are but a few examples.
C. Other Practical Problems with Defendants’ Proposed Protective Order.
Oddly, even though Defendants have insisted that certain information in this case must be
filed under seal, Defendants’ proposed protective order does not contain any provision to
facilitate filing information designated as confidential pursuant to any protective order under
seal. Including language regarding procedures for filing pleadings under seal in a protective
order conserves resources and reduces expenses for the parties. It also reduces the burden on the
Court’s docket. Therefore, Plaintiffs have added such language to their proposed order.
Moreover, the provisions contained in Paragraph nine (9) of Defendants’ proposed
protective order are cumbersome and simply unworkable. Defendants propose that a party
desiring to file any information designated as confidential must give written notice of their intent
to do so seven (7) days before filing the information. (Docket No. 64-3 ¶ 9). Such a provision
would unreasonably require the preparation of pleadings including without limitation amended
complaints or answers, motions, briefs, responses, replies, etc. far in advance of the actual filing
deadline in order to identify any alleged confidential material about which to give advance
notice. This is simply unworkable and unreasonable from a practical standpoint. Defendants’
proposed protective order invites motion practice by putting the burden on the party seeking to
protect the confidential information to seek a “sealing order.” The provisions contained in
Paragraph nine (9) of Defendants’ proposed protective order should not be included in any order
entered by the Court. The parties should not be burdened with the obligation of identifying
confidential information to be filed a week in advance. Rather, a provision allowing any alleged

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confidential information to be filed under seal should be incorporated in any protective order the
Court desires to enter such furthers judicial economy and the interests of justice.
III.

CONCLUSION
Based upon the foregoing, the Court should deny Defendants’ Motion for Entry of

Protective Order Regarding Confidential Information (Docket No. 64) in its entirety and enter
the Protective Order proposed by Plaintiffs which is being submitted as a Proposed Order along
with this Response pursuant to Rule CV-7(d) of the Local Civil Rules of this Court.

Respectfully submitted,
SIEBMAN, BURG, PHILLIPS & SMITH, LLP
/s/ Clyde M. Siebman
CLYDE M. SIEBMAN
State Bar No. 18341600
BRYAN H. BURG
State Bar No. 03374500
STEPHANIE R. BARNES
State Bar No. 24045696
Federal Courthouse Square
300 North Travis Street
Sherman, Texas 75090
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
ATTORNEYS FOR PLAINTIFFS

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CERTIFICATE OF SERVICE
The undersigned certifies that on this 26th day of May, 2011, all counsel of record who
are deemed to have consented to electronic service are being served with a copy of this document
through the Court’s CM/ECF system under Local Rule CV-5(a)(3). Any other counsel of record
will be served by a facsimile transmission and/or first class mail.

/s/ Clyde M. Siebman

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