Lone Star Chapter Paralyzed Veterans of America et al v. City of San Antonio et al
ORDER DENYING as moot 113 Motion for Sanctions; DENYING as moot 113 Motion to Strike; Motion to compel within dkt no. 113 is GRANTED IN PART AND DENIED IN PART; GRANTING IN PART AND DENYING IN PART 118 Motion to Vacate ; DENYING AS MOOT 126 Motion for Protective Order; DENYING 127 Motion to Seal. Signed by Judge Nancy Stein Nowak. (tm)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
SKYEWARD BOUND RANCH,
CITY OF SAN ANTONIO,
CIVIL ACTION NO.
ORDER ON PENDING MOTIONS
Several matters are pending before the Court.
Docket entry 113:
Defendant moves for sanctions – specifically requesting that plaintiff’s claims for
damages be stricken – after plaintiff failed to produce bank records and other financial
documents which were the subject of a previously filed motion to compel and order
granting same. Defendant argues that the bank records are relevant to plaintiff’s claims
for monetary damages. Plaintiff responds that the motion is moot in that it no longer
requests monetary damages.
In light of plaintiff’s response, the motion for sanctions is DENIED as MOOT. If
the bank statements remain relevant to an issue other than the abandoned request for
money damages, defendant may so advise the Court and re-urge its motion.
Defendant also moves for an order compelling plaintiff to produce documents withheld
based on various privilege claims. Those documents were the subject of an earlier
motion to compel and objections to production were overruled.1
To the extent the motion seeks to compel plaintiff to produce documents which
plaintiff has in its possession or control responsive to defendant’s first request for
production #32, the motion is once again GRANTED. Plaintiff is ORDERED to produce
those documents within 14 days of date of this order.
Defendant moves for an order compelling non-party Canard to produce documents which
were discussed at a deposition. It appears that Canard refused and produced a privilege
log2 in which he listed a number of emails between himself and plaintiff’s counsel and
designated those emails as privileged. Defendant objects to Canard’s assertion of
The court cannot analyze the motion given the current state of the record. Neither
the deposition notice or subpoena directing Canard to produce categories of documents
which would include these emails nor the deposition transcript were submitted with this
motion to compel. Prior to the Court assessing the applicability of claims of privilege, it
must review the scope of the underlying request for the subject documents and their
relevance to the claims at issue. To the extent the motion seeks an order directing Canard
to produce, the motion is DENIED.
Docket entry 118.
Docket entries 65, 67 and 92.
In its motion to compel, defendant represented that the subject privilege log was attached
to its motion as exhibit F. Exhibit F is actually a bank record. Exhibit 3 to plaintiff’s response to
the motion to compel (docket entry 121) identified as “Privilege Log - Chris Canard” appears to
be the document which is the subject of this motion.
Defendant moved to vacate the previously entered Protective Order (docket entry 88)
based on plaintiff’s improper designation of documents as confidential and/or “for
attorneys eyes only.”
To the extent the defendant asks the court to find that the TABC letters, lease
agreements, etc. are not entitled to protection, the defendant’s motion is essentially a
motion to reconsider the Order entered on January 25, 2011 (docket entry 88). Defendant
has not shown that reconsideration is necessary to correct an error of law or to prevent
manifest injustice.3 The motion is DENIED.
To the extent defendant asks the Court to hold that Canard has no authority to designate
documents as confidential because he is not a party, the Court agrees. The Protective
Order directs that information disclosed at a deposition of a non-party may be designated
by any party as confidential.4 Any designation as confidential made by Canard is
See e.g. Vladmir Ltd. v. Pac. Parts Supply Co., No. SA-08-CV-819-XR, 2009 WL
4110288, at *2 (W.D. Tex. Nov. 20, 2009) (discussing motions to reconsider and factors to apply
to analysis of same).
Docket entry 89, para. 5 reads:
Information disclosed at (a) the deposition of a party or one of its present
or former officers, directors, employees, agents or independent experts retained by
counsel for the purpose of this litigation, or (b) the deposition of a third party
(which information pertains to a party) may be designated by any party as
"Confidential" or "For Counsel Only" ("or Attorneys' Eyes Only") information by
indicating on the record at the deposition that the testimony is "Confidential" or
"For Counsel Only" (or "Attorneys' Eyes Only") and is subject to the provisions of
Any party may also designate information disclosed at such deposition as
"Confidential" or "For Counsel Only" (or "Attorneys' Eyes Only") by notifying all
of the parties in writing within thirty (30) days of receipt of the transcript, of the
specific pages and lines of the transcript which should be treated as "Confidential"
or "For Counsel Only" (or "Attorneys' Eyes Only") thereafter. Each party shall
ORDERED REMOVED. Designation of information disclosed at Canard’s deposition as
confidential by plaintiff are, however, permissible under the Protective Order.
To the extent defendant asks the Court to review plaintiff’s restrictive classification of
certain documents as “for attorneys eyes only,” the Court finds that plaintiff – who has
the burden to show good cause for the restriction– has not demonstrated that the
restrictive classification is justified. The discovery is not improper if there is the
possibility that information might be used for purposes of a criminal prosecution. In the
absence of showing that defendant is either abusing the discovery process or that the
prosecution of a criminal case is substantially and irreparably prejudiced by the
disclosure, the mere fact that the information produced might be used for a criminal
prosecution does not warrant limiting access to the information to “attorneys eyes only.”5
The authorities cited by the plaintiff to support its position that the restrictive
classification is warranted are inapposite, and the Court is unable to locate any authorities
which support the position advanced by the plaintiff. The motion to vacate is GRANTED
insofar as plaintiff’s designation of certain documents as “for attorneys eyes only” is
ORDERED REMOVED as without justification.
Docket entry 126:
attach a copy of such written notice or notices to the face of the transcript and
each copy thereof in his possession, custody or control. All deposition transcripts
shall be treated as "For Counsel Only" (or "Attorneys' Eyes Only") for a period of
thirty (30) days after the receipt of the transcript.
See generally, Dominguez v. Hartford Financial Services Group, Inc., 530 F.Supp.2d
902 (S.D.Tex. 2008) (analysis of implications on discovery process in light of criminal
prosecution of plaintiff in the context of a motion to stay the entire proceeding).
Plaintiff moves for a protective order with respect to production of its bank
statements. Specifically, plaintiff asks the court to limit disclosure of the bank statements
to counsel only.
The court understands defendant’s request for plaintiff’s bank records to have
been relevant to plaintiff’s claim for money damages. However, plaintiff’s proposed
amended pleading removes its claim for money damages, rendering the bank records
irrelevant and non-discoverable.
Accordingly, the motion for protective order is DENIED as MOOT. If defendant
continues to argue it is entitled to these documents, it is directed to file an advisory with
the Court clarifying the basis for entitlement to the bank records under Rule 26(b)(1), and
the Court will then analyze the motion for protective order and plaintiff’s position that
access to the documents should be restricted to counsel only.
Docket entry 127:
Plaintiff moves to seal a document or portions of a document previously filed by
the defendant, asserting that it contains confidential information. Defendant opposes the
If plaintiff is complaining about information in the exhibits to the motion, the
motion is unnecessary; defendant filed all the exhibits to docket entry 118 under seal.
Further, as defendant notes, the names of the specific attorneys who sought opinions from
the Texas Alcoholic and Beverage Commission referred to in the body of the motion are
found in the exhibits attached to the Second Amended Complaint (docket entry 29). The
motion to seal references from those documents is unwarranted. Additionally, as the
party with the burden to demonstrate good cause for the request to seal, plaintiff has
failed to explain how references to Olmos Mart, Olmos Food Mart and Trip Wire
Entertainment require sealing of the motion or a portion of same. The motion to seal is
After investing substantial time reviewing the submissions of the parties in connection
with the above motions, the Court encourages both parties to consult with the Clerk of Court,
specifically the Operations Supervisor for the San Antonio Division, regarding filing and
submission of documents using CM/ECF in a manner that is efficient for all concerned.
Specifically, the parties are reminded:
to file documents in text .pdf format (not image or scanned .pdf format) when
possible. See a video describing why this is significant and how to create a text
.pdf document for electronic filing here:
to identify documents attached to motions and responses, etc. with as much
precision as possible. This enables the Court and opposing counsel to be able to
maneuver through the multiple attachments to motions, etc. and identify the
desired document from its description more quickly and without the necessity of
opening poorly identified documents repeatedly merely to determine what
documents are actually attached to a particular submission. For helpful examples
of how attachments can be more effectively described when uploaded in
CM/ECF, see “CM/ECF Attorney Presentation,” particularly slides 8 and 9 found
here: http://www.txwd.uscourts.gov/ecf/default.asp; and
“Electronic Filing Tips for Effective Advocacy,” page 16 found here:
there is no need to attach a copy of a document previously made part of the record
to a subsequent motion, response, etc. A simple reference to the docket entry
number of a previously entered order, or previously filed motion, or a document
previously submitted as an attachment to an earlier filing is sufficient.
if a party is requesting relief from the court, the motion or other pleading should
contain at a minimum a reference to the applicable rule of procedure which
authorizes the relief sought . See Local Rule CV-7(c): “All motions herein
referred to, while not required to be accompanied by legal authorities, must state
the grounds therefore and cite any applicable rule, statute, or other authority, if
any, justifying the relief sought. For example, discovery related motions should
contain a reference to the applicable discovery rule.
Attention to the above by counsel will greatly assist the Court in reviewing and analyzing their
submissions in this and other matters before the Court.
It is so ORDERED.
SIGNED on July 2, 2011.
NANCY STEIN NOWAK
UNITED STATES MAGISTRATE JUDGE
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