Contagious v. Groupon

Filing 56

MEMORANDUM DECISION AND ORDER denying 37 Motion to Amend/Correct Standard Protective Order. Signed by Magistrate Judge Paul M. Warner on 11/20/18 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

CONTAGIOUS, LLC,
Plaintiff,
v.

MEMORANDUM DECISION AND
ORDER DENYING MOTION TO
MODIFY THE STANDARD
PROTECTIVE ORDER
Case No. 2:18-cv-00235-TC-PMW

GROUPON, INC., and DOES 1-5,
Defendants.

District Judge Tena Campbell
Chief Magistrate Judge Paul M. Warner

District Judge Tena Campbell referred this case to Chief Magistrate Judge Paul M.
Warner pursuant to 28 U.S.C. § 636(b)(1)(A). 1 Before the court is Defendant Groupon, Inc’s
(“Defendant”) motion to amend the Standard Protective Order (the “Motion”). 2 The court has
carefully reviewed the written memoranda submitted by the parties. Pursuant to Civil Rule 7-1(f)
of the Rules of Practice for the United States District Court for the District of Utah (“Local
Rules”), the court has concluded that oral argument is not necessary and will decide the Motion
on the basis of the written memoranda. See DUCivR 7-1(f).
ANALYSIS
Pursuant to Local Rule 26-2, “[u]nless the court enters a different protective order . . . the
Standard Protective Order [(“SPO”)] . . . shall govern and discovery under the [SPO] shall
proceed.” DUCivR 26-2(a)(1). The Motion seeks an order modifying four provisions of the SPO

1

See docket no. 17.

2

See docket no. 37.

Plaintiff Contagious, LLC (“Plaintiff”) opposes the Motion. 3 For the reasons set forth below, the
Motion is denied.
The SPO allows “representatives, officers, or employees of a party (“ROE”) as necessary
to assist outside counsel with this litigation” to view documents marked confidential. 4 Defendant
asserts that this provision “essentially eviscerates the [confidential] designation.” 5 Defendant
argues that the SPO should be modified to prohibit the parties from disclosing confidential
documents to ROE, and in the event ROE need to view documents designated as confidential,
the party “should reach an agreement with the producing party or file a motion with the court.” 6
The court disagrees that this provision of the SPO “eviscerates” the confidential
designation. Moreover, in the court’s view, Defendant’s proposed modification invites
unnecessary discovery motions this court would need to resolve. Such motions would be a waste
of the court’s – and the parties’ – time and resources. Accordingly, this requested modification is
denied.

3

As Defendant points out in its reply memorandum, Plaintiff’s opposition was untimely.
Pursuant to Local Rule 37-1, “[t]he opposing party must file its response five business days after
the filing of the Motion.” DUCivR 37-1(6). Plaintiff did not file its response until September 10,
2018, seventeen (17) days after the deadline. However, Local Rule 37-1 also does not provide for
the filing of a reply memorandum, which Defendant filed. Nevertheless, the court has concluded
that Defendant’s request for a modification of the SPO should be denied based on the Motion
alone.
4

SPO at 11, available at http://www.utd.uscourts.gov/usdc-forms.

5

Docket no. 37 at 2.

6

Id.
2

Second, Defendant argues that “the disclosure of an expert’s identity would be a
disclosure of work product.” 7 The SPO requires disclosure of the identity of experts and permits
expert fact depositions if a party can show “a good faith, demonstrable basis independent of the
Disclosure Agreement or the information provided under subparagraph (a) that [the expert]
possesses facts relevant to this action, or facts likely to lead to the discovery of admissible
evidence.” 8 Defendant proposes that the SPO be modified to not require disclosure of an expert’s
identity and to prohibit expert fact depositions.
The court again disagrees with Defendant. The SPO is the default protective order,
automatically governing disclosure in every case, and works well in the majority cases. The court
is unpersuaded by Defendant’s suggestion that this court mandates the disclosure of work
product by the terms of its own SPO. Moreover, Defendant has not demonstrated any
circumstances unique to this case which warrant a blanket prohibition on expert fact depositions.
Instead, Defendant again merely attacks the SPO itself. The court believes that the SPO
reasonably restricts discovery of counsel’s work with consultants and experts. No modification is
necessary. If the court thought otherwise, the SPO would not be standard. Therefore, this
requested modification is also denied.
Next, Defendant proposes that, “when a receiving party believes that a producing party
has inadvertently produced privileged information . . . [t]he receiving party should be obligated
to notify the producing party of such circumstances.” 9 The Motion provides no basis for this

7

Docket no. 37 at 3.

8

SPO at 6.
Id.

9

3

proposed modification. The court reiterates that the SPO is standard for good reason. In addition,
the court notes that Rule 26 of the Federal Rules of Civil Procedure addresses the disclosure of
privileged information. See Fed. R. Civ. P. 26(b)(5)(B). Rule 26 places the burden on the
producing party to notify the receiving party of the disclosure of privileged information. Absent a
stipulation from the parties or some articulation of good cause for the modification, this court
will not require more of the receiving party than the Federal Rules of Civil Procedure or the
SPO. Thus, this requested modification is also denied.
Finally, Defendant proposes modifying the SPO to reflect the parties’ agreement
regarding the disclosure date of the identity of their experts. Since the Motion was filed, an
amended scheduling order 10 was entered which sets the deadline for disclosure of expert
identities. Therefore, the court concludes that modifying the SPO is unnecessary.
CONCLUSION
For all the foregoing reasons, the Motion 11 is hereby DENIED.
IT IS SO ORDERED.
DATED this 20th day of November, 2018.
BY THE COURT:

PAUL M. WARNER
Chief United States Magistrate Judge

10
11

See docket no. 53.
See docket no. 37.
4