Pelletier v. State Farm Mutual Automobile Insurance Company

Filing 35

ORDER denying 32 Plaintiff's Motion to Strike ; terminating 25 Motion for Protective Order- if within twenty (20) days of this order the parties are unable to reach an agreement on the matter, Plaintiff may renew his Motion for Protective Order. Signed by Magistrate Judge Brooke C. Wells on 06/27/2011. (tls)

_____________________________________________________________________
IN THE UNITED STATES DISTRICT COURT
CENTRAL DIVISION, DISTRICT OF UTAH
_____________________________________________________________________
MARK PELLETIER, an individual,

Civil No. 2:10-cv-1185
:

Plaintiff,

RULING & ORDER
:

vs.
:
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY, an Illinois
corporation,

:

DISTRICT COURT JUDGE TED
STEWART
MAGISTRATE JUDGE BROOKE C.
WELLS

Defendants.
_____________________________________________________________________

Currently before the Court, is Plaintiff Mark Pelletier’s “Motion For Protective
Order.”1 As is typical in motion practice, defendant State Farm Mutual Automobile
Insurance Company (“State Farm”) filed its opposition,2 and Mr. Pelletier filed his reply
memorandum thereto.3 However, attached to plaintiff’s reply memorandum was a
“revised” protective order that appears significantly different from the original proposed
protective order, at issue in the underlying motion.4 As a result of the attachment,

1

Document Number 25.

2

Document Number 28.

3

Document Number 29.

4

Document Number 29-4.

State Farm filed an “Objection To Plaintiff’s Reply Memorandum In Support Of Motion
For Protective Order” arguing it had not had the opportunity to brief or discuss the
revised order with plaintiff’s counsel.5 In response, plaintiff filed a “Motion To Strike”
asserting that defendant’s objection should be stricken as a sur-reply brief filed without
leave of the Court.6
Federal Rule of Civil Procedure 26(c)(1) states:
A party or any person from whom discovery is sought may move for
a protective order in the court where the action is pending. . .The motion
must include a certification that the movant has in good faith conferred or
attempted to confer with other affected parties in an effort to resolve the
dispute without court action.
(Emphasis Added). In his motion for protective order, Mr. Pelletier “certifies” that he
has conferred or attempted to confer with defendant in good faith.7 The Court,
however, concludes that further discussions amongst the parties are warranted and
hereby orders that the parties now do so.
The filing of a significantly altered protective order as an attachment to the reply
brief, does not create an opportunity, consistent with Rule 26, in which the parties may
confer and have a meaningful discussion of disputed issues. Throughout its briefing,
plaintiff indicates that he is “more than willing to modify and/or amend the proposed
protective order to address any reasonable concerns raised by Defendant.”8 To that

5

Document Number 31.

6

Document Number 33.

7

Document Number 26, pg. 2.

8

Document Number 26, pg. 4.
2

end, the Court is anticipative that the parties will resolve this issue absent judicial
intervention. However, the time to engage in discussions and provide amended orders
addressing relevant concerns, is prior to filing a motion for protective order---not during
the course thereof.
For these reasons, the Court hereby denies plaintiff’s Motion To Strike and
Orders the parties to in good faith confer on plaintiff’s revised protective order or any
acceptable amendment thereto. If within twenty (20) days of the date of this order, or
sooner if so agreed, the parties are unable to reach an agreement on the matter, Mr.
Pelletier may re-new his motion for protective order. The Court requests the parties
advise it of any resolution reached prior to such date.

DATED this 27th day of June, 2011.
BY THE COURT:

______________________
Brooke C. Wells
United States Magistrate Judge

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