Crawford et al v. Senex Law, P.C.

Filing 157

MEMORANDUM OPINION and ORDER granting 140 Motion to Intervene Signed by Magistrate Judge Joel C. Hoppe on 03/21/2022. (dg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
Charlottesville Division
TERI CRAWFORD, GARRY BROWN,
LYDIA GREEN,
LORETTA PENNINGTON &
PATRICIA SANDERS, individually and
on behalf of all persons similarly situated
Plaintiffs,
v.
SENEX LAW, P.C.,
Defendant.

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Civil Action No. 3:16-cv-00073
MEMORANDUM OPINION & ORDER
By:

Joel C. Hoppe
United States Magistrate Judge

This closed case is before the Court on a “Motion to Intervene for Purposes of Partial
Relief from Protective Order,” ECF No. 140 (“Mot.”), filed by Plaintiffs in Lord v. Senex Law,
No. 7:20cv541 (W.D. Va. filed Sept. 9, 2020), which is pending in the Roanoke Division of this
Court. The Motion is a narrow request for relief asking the Court to interpret and, if necessary, to
modify, a stipulated Protective Order governing in perpetuity “the use, handling, and disclosure
of all documents, testimony or information produced or given in [the Crawford] case that are
designated to be subject to th[at] Order,” Prot. Order ¶ 1 (Sept. 12, 2017), ECF No. 70; id. ¶ 14
(“This Order shall remain binding after the conclusion of this case unless otherwise ordered by
the Court, and the Court shall retain jurisdiction over all parties bound hereby for the purposes of
enforcing this Order.”). See Br. in Supp. of Mot. ¶¶ 1–2, 6–10, ECF No. 141; Supp’l Br. in Supp.
of Mot. ¶¶ 1–2, 6–10, ECF No. 155.
More specifically, several attorneys for Plaintiffs in Lord were also counsel of record for
Plaintiffs in Crawford, and therefore had access to certain materials that Defendant Senex Law
produced in pretrial discovery in Crawford and designated “confidential” under the stipulated
Protective Order. See Br. in Supp. of Mot. ¶¶ 6–7. Those materials contain “information

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regarding [Senex’s] business practices.” Id. ¶ 2 (“Pursuant to the Protective Order, defendant
Senex designated all information regarding its business practices to be confidential.”); see Prot.
Order ¶ 2 (citing Fed. R. Civ. P. 26(c)(1)(G)). The stipulated Protective Order broadly prohibits
the Crawford parties and their attorneys of record from “us[ing], directly or indirectly,” all
Confidential Materials or Confidential-Attorneys Eyes Only (“AEO”) Materials “and all
information derived therefrom . . . for any purpose whatsoever other than solely for the discovery
and/or the preparation and trial of [the Crawford] action in accordance with this Order.” Prot.
Order ¶ 4. The Lord Plaintiffs filed this Motion because their legal team includes attorneys who
did not represent Plaintiffs in Crawford and who therefore “were not privy to the information”
that Senex designated “confidential” during pretrial discovery in Crawford. Br. in Supp. of Mot.
¶ 6. Thus, “in the absence of prior written permission from [Senex] or an order by the Court,”
Prot. Order ¶¶ 6, 9, the attorneys who were involved in Crawford cannot “disclose” their mental
impressions of any “information derived” from Senex’s confidential business materials to their
new co-counsel in Lord, id. ¶¶ 4, 6, 9. Br. in Supp. of Mot. ¶¶ 6–8, 10. Senex opposes the Lord
Plaintiffs’ request. Br. in Supp. of Mot. ¶ 10; see generally Def.’s Br. in Opp’n to Mot. 1–10,
ECF No. 143; Def.’s Supp’l Br. in Opp’n to Mot. 1–11, ECF No. 156.
For the reasons explained below, the Court finds that it has authority to grant the relief
requested, Prot. Order ¶¶ 6, 9, 14; see Public Citizen v. Ligget Grp., Inc., 858 F.2d 775, 782–83
(1st Cir. 1988); Fed. R. Civ. P. 26(c)(1)(G), and that it is proper to issue an Order allowing the
attorneys who are counsel of record for Plaintiffs both in Crawford and in Lord to share with the
other Plaintiffs’ attorneys in Lord their mental impressions of information derived from materials
that Defendant Senex Law designated “Confidential” under the stipulated Protective Order and
produced during pretrial discovery in Crawford. See Prot. Order ¶¶ 6, 9; Fed. R. Civ. P. 1

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(“These rules . . . . should be construed, administered, and employed by the court and the parties
to secure the just, speedy, and inexpensive determination of every action and proceeding.”). This
Order shall not authorize the distribution or use of the underlying “Confidential Materials” or
“Confidential-AEO Materials” that Senex previously produced in pretrial discovery, Prot. Order
¶¶ 4–5, 6, 9, or of any written “summaries, extracts, compilations, notes, or other attorney work
product containing Confidential Materials and/or Confidential-AEO Materials (with the
exception of drafts of pleadings filed with the Court),” that Plaintiffs’ counsel returned to Senex
or destroyed after the conclusion of the Crawford case, id. ¶ 13.
I. Background
In October 2016, Plaintiffs Teri Crawford, Garry Brown, Lydia Green, Loretta
Pennington, and Patricia Saunders filed a putative class action complaint against Defendant
Senex Law, P.C., alleging violations of the Fair Debt Collections Practices Act (“FDCPA”), 15
U.S.C. §§ 1692–1692k. See Compl., ECF No. 1. The parties started discovery in late February
2017. See ECF Nos. 31, 34. That September, the Honorable Glen E. Conrad entered the parties’
stipulated Protective Order “govern[ing] the use, handling, and disclosure of all documents,
testimony or information produced or given in th[e] case that are designated to be subject to this
Order.” Prot. Order ¶ 1. “This Order shall remain binding after the conclusion of [the Crawford]
case, and the Court shall retain jurisdiction over all parties bound hereby for the purposes of
enforcing this Order.” Id. ¶ 14. The Crawford case was voluntarily dismissed with prejudice in
December 2018 after the parties settled Plaintiffs’ claims. 1 See ECF Nos. 136, 138, 139.

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A copy of the stipulated Protective Order is incorporated by reference and attached as an exhibit to the
parties’ executed Settlement Agreement & Release. Def.’s Br. in Opp’n to Mot. 4, 7 (citing id. Ex. 1, at 2
¶ 1.B.ii); see generally Def.’s Br. in Opp’n to Mot. Ex. 1, at 2, 14–22, ECF No. 152-1. The Agreement
itself, “the terms of the Agreement, the settlement negotiations, and the settlement provided for [there]in”
are made “confidential” under a separate provision of the Agreement. Def.’s Br. in Opp’n to Mot. 4
(citing id. Ex. 1, at 3 ¶ 1.F); see also id. Ex. 1, at 3 ¶ 1.F.i (“The Parties may provide a copy of this

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The stipulated Protective Order provides that “[a]ny documents, testimony or information
submitted . . . which [are] asserted in good faith by the producing party or by any other party to
contain or constitute information protected by” Rule 26(c)(1)(G) of the Federal Rules of Civil
Procedure, “or other provision of law,” would be “segregated from other information being
submitted” and expressly designated “CONFIDENTIAL or CONFIDENTIAL-ATTORNEY’S
EYES ONLY.” Prot. Order ¶ 2. Rule 26(c)(1)(G) authorizes federal courts, on motion and “for
good cause” shown, Fed. R. Civ. P. 26(c)(1), to issue protective orders “requiring that a trade
secret or other confidential . . . commercial information not be revealed or be revealed only in a
specified way,” Fed. R. Civ. P. 26(c)(1)(G). During discovery in Crawford, “Senex designated
all information regarding its business practices to be confidential.” Br. in Supp. of Mot. ¶ 2.
Thus, those confidential materials “and all information derived therefrom (including but not
limited to all testimony, deposition or otherwise, that refers, reflects, or otherwise reflects or
otherwise discusses any such materials), shall not be used, directly or indirectly, by any person . .
. for any purpose whatsoever other than solely for the discovery and/or the preparation and trial
of [the Crawford] action in accordance with this Order.” Prot. Order ¶ 4.
The prohibition on “us[ing], directly or indirectly,” any confidential “materials . . . and all
information derived therefrom,” id. ¶ 4, includes “disclos[ing]” such information “to any person
other than . . . the parties, their attorneys of record, and those attorneys’ support staff . . . who
perform[ed] work tasks related to [the Crawford] case,” id. ¶ 6(i). Accord id. ¶ 9 (“ConfidentialAEO Materials shall not be disclosed to any person other than counsel of record in this case . . .
.”). But the prohibition on “disclosing” such materials, id. ¶¶ 6, 9, and any “information derived
therefrom,” id. ¶ 4, is not absolute. See id. ¶ 8. Rather, the parties agreed that it was the default
Agreement and/or describe the terms and conditions of this Agreement within any lawsuit before a United
States court of competent jurisdiction only in response to a Court order to that effect.”).

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rule “in the absence of prior written permission from the designating party or an order by the
Court[.]” Id. ¶ 6; accord id. ¶ 9 (“[I]n the absence of prior written permission from the
designating party or an order by the Court[,] Confidential-AEO Materials shall not be disclosed
to any person other than counsel of record in this case . . . .”). If the designating party consents or
the Court so orders, then confidential materials and information derived therefrom may be
“disclosed to a[] person other than” attorneys of record and their support staff who worked on the
Crawford case. 2 See id. ¶¶ 6(i), 8; accord id. ¶ 9 (providing the same for “Confidential AEOMaterials”). As noted, the parties and attorneys in Crawford agreed that the stipulated Protective
Order “shall remain binding after the conclusion of this case unless otherwise ordered by the
Court, and [that] the Court shall retain jurisdiction over all parties bound hereby for purposes of
enforcing this Order.” Id. ¶ 14.
In September 2020, Plaintiffs Jennifer Lord, Ebony Reddicks, and Toniraye Moss filed a
putative class action complaint against Defendant Senex Law, P.C., also alleging violations of
the FDCPA. Lord, No. 7:20cv541, Compl., ECF No. 1; see Br. in Supp. of Mot. ¶¶ 4–5. That
action is proceeding in the Roanoke Division and was stayed until mid-January 2022. 3 See Lord,
No. 7:20cv541, ECF Nos. 49, 51, 54, 56. The Lord Plaintiffs’ “Motion to Intervene” asks this

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The parties separately agreed that the actual “Confidential Materials and Confidential-AEO Materials
produced in discovery in this case shall not be used in any other legal . . . proceedings unless requested
and produced according to the rules of discovery and rulings of the court in such other proceeding.” Prot.
Order ¶ 5. Notably, this provision does not contemplate an exception based on the producing party’s prior
written consent or an order issued by the Court in the Crawford case. Thus, the Order issued today in this
case will not affect discovery or pretrial proceedings in the Lord case, and any disputes over discovery
served in Lord will be resolved as appropriate in that case. See JTH Tax, Inc. v. H&R Block E. Tax Servs.,
Inc., 359 F.3d 699, 705 (4th Cir. 2004) (“When a district court’s decision is based on an interpretation of
its own order, our review is even more deferential because district courts are in the best position to
interpret their own orders.”).
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On January 10, 2022, the Honorable Michael F. Urbanski denied Senex’s motions to stay and to permit
an interlocutory appeal of his order denying in part Senex’s motion to dismiss. See ECF No. 32, 37, 53,
54. The Honorable Robert S. Ballou will oversee pretrial matters in the Lord case, including any
discovery issues. ECF No. 56.

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Court to interpret and, if necessary, to modify, the Crawford Protective Order “so that their full
legal team may be apprised and aware of the [business] information” that Senex designated as
“confidential” and produced during pretrial discovery in this case. Br. in Supp. of Mot. ¶ 7; see
id. ¶ 2 (“Senex designated all information regarding its business practices to be confidential.”).
They argue that the Court has express or inherent authority to grant the relief requested, see Br.
in Supp. of Mot. ¶ 7 (citing Fed. R. Civ. P. 60(b)); Supp’l Br. in Supp. of Mot. ¶¶ 4–10 (citing
Public Citizen, 858 F.2d at 782; Dushkin Pub’g Grp., Inc. v. Kinko’s Serv. Corp., 136 F.R.D.
334, 336 n.5 (D.D.C. 1991) (citing Fed. R. Civ. P. 24)), and that doing so “will promote
efficiency [because] it will eliminate the need for duplicative discovery just so that the Lord
plaintiffs’ legal team will be able to know what most of them already know,” Br. in Supp. of
Mot. ¶ 8; see also Supp’l Br. in Supp. of Mot. ¶ 1. Importantly, the Lord Plaintiffs are not asking
that their attorneys who were involved in Crawford be allowed to use the underlying confidential
materials in Lord, or to give those materials to their new co-counsel in that case. See Br. in Supp.
of Mot. ¶ 7; Supp’l Br. in Supp. of Mot. ¶ 1. Rather, they want their attorneys to be able to
discuss their recollections or mental impressions of information derived from those materials
with their Lord co-counsel while Plaintiffs’ legal team develops their litigation strategy and
drafts requests seeking discovery relevant to the claims and defenses in that case. Br. in Supp. of
Mot. ¶¶ 6–8; see also Def.’s Supp’l Br. in Opp’n to Mot. 8 (recognizing that the Lord Plaintiffs
are asking for leave to “speak with co-counsel about confidential material from Crawford,” and
are “not actually seeking discovery material [that is] prohibited from disclosure” in this case).
Senex opposes the Lord Plaintiffs’ request. See generally Def.’s Br. in Opp’n to Mot. 1–
10; Def.’s Supp’l Br. in Opp’n to Mot. 1–9. It argues that this Court does not have authority to
grant the relief requested, see Def.’s Br. in Opp’n to Mot. 5–6; Def.’s Supp’l Br. in Opp’n 1, 3–6,

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and that, even if it did, granting such relief in this case would be “inequitable and inappropriate,”
Def.’s Br. in Opp’n to Mot. 5, for numerous reasons. See generally id. at 5–9; Def.’s Supp’l Br.
in Opp’n to Mot. 6–9. For example, Senex asserts that granting relief would: (i) mean “the Lord
Plaintiffs are automatically given access to confidential and inadmissible material that is . . . far
outside the scope of discovery that would otherwise be allowed in Lord,” Def.’s Br. in Opp’n to
Mot. 6–7; see also Def.’s Supp’l Br. in Opp’n to Mot. 4 n.2; and (ii) permit litigation conduct
that “would otherwise be a violation,” or “breach,” of both the “Settlement Agreement and the
Protective Order,” id. at 7–8; see also Def.’s Supp’l Br. in Opp’n to Mot. 6–9. It also asserts that,
if the attorneys who represented Plaintiffs in Crawford cannot adequately represent Plaintiffs in
Lord without “violating” the Settlement Agreement and Protective Order in Crawford, then those
attorneys have a conflict of interest and “they must withdraw” from the Lord litigation. Def.’s
Supp’l Br. in Opp’n to Mot. 8 (citing Va. R. Prof’l Conduct 1.7(a)).
I held a hearing on the Motion in September 2021. ECF No. 154. At the hearing, counsel
for the Lord Plaintiffs reiterated that he and his new co-counsel did not want to access, review, or
use any of the underlying confidential materials that Senex produced during pretrial discovery in
Crawford. Indeed, he destroyed Confidential Materials and Confidential-AEO Materials as
required by the stipulated Protective Order. See Prot. Order ¶ 13. Rather, counsel wanted to share
his recollection or mental impressions of what he learned from materials that Senex designated
“confidential” in Crawford, which included “all information regarding [Senex’s] business
practices[.]” Br. in Supp. of Mot. ¶ 2. Plaintiffs’ counsel further explained that they were not
seeking discovery in Lord at that time, but that being able to “speak candidly” with his cocounsel about the confidential information he learned from discovery in Crawford would allow
Plaintiffs’ legal team in Lord to draft more effective discovery requests and generally be more

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efficient while preparing that case for trial. Senex’s counsel agreed that we could not expect
Plaintiffs’ counsel to simply forget what he remembered about the confidential discovery
materials produced in Crawford, but he again argued that allowing Plaintiffs’ counsel to discuss
any “confidential information” with his new co-counsel in Lord would violate both the
Settlement Agreement and the Protective Order in this case. See also Def.’s Supp’l Br. in Opp’n
to Mot. 8 (“[T]he Proposed Intervenors are not actually seeking discovery material [that is]
prohibited from disclosure by the Protective Order and Settlement Agreement. In reality,
Proposed Intervenors’ counsel are requesting relief to speak with co-counsel about confidential
material from Crawford, an act prohibited by the Settlement Agreement.”). In response,
Plaintiffs’ counsel explained that he did not want to discuss with his new co-counsel the content
of any “settlement negotiations” or “terms” included in the Settlement Agreement & Release,
which are protected from disclosure under the Agreement itself. See Ex. 1, at 3 ¶ 1.F. Rather, he
merely wanted to share his mental impressions of confidential business materials that Senex
produced during pretrial discovery, well before the Crawford parities and attorneys executed the
Settlement Agreement & Release. Senex’s Counsel also argued that, to the extent the underlying
confidential materials were relevant to the claims or defenses in Lord, Plaintiffs’ attorneys could
ask Senex to produce those materials again during discovery in that case. See Prot. Order. ¶ 5.
Finally, counsel for the Lord Plaintiffs and Senex agreed that this “Motion to Intervene”
is necessary only because some of the attorneys who represent Plaintiffs in Lord were not
previously counsel of record for Plaintiffs in Crawford. If Plaintiffs’ legal teams in both cases
were identical, then each Plaintiffs’ attorney in Lord would have been entitled to review the
confidential materials that Senex produced in Crawford, and, consistent with the terms of the
stipulated Protective Order, those attorneys could discuss with co-counsel their recollections or

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mental impressions of information derived from those confidential materials while preparing the
Lord case for trial. Nonetheless, Senex insisted that the Lord Plaintiffs chose these attorneys to
represent them knowing they were bound by the Protective Order in Crawford and that Senex
had no obligation to help the Lord Plaintiffs litigate their case more efficiently. See Def.’s Br. in
Opp’n to Mot. 1–3, 7–8; Def.’s Supp’l Br. in Opp’n to Mot. 2, 6–8 & n.3
II. Discussion
The Lord Plaintiffs assert that their requested relief from the Protective Order in
Crawford is authorized under Rule 24(b), which allows the court to permit a non-party’s
intervention in litigation, see Fed. R. Civ. P. 24(b)(1)(B), or under Rule 60(b)(6), which allows
the court, “[o]n motion and just terms,” to “relieve a party or its legal representative from a final
judgment, order, or proceeding” for any extraordinary “reason that justifies relief,” Fed. R. Civ.
P. 60(b)(6); see DePaolo v. Wade, No. 7:11cv198, 2015 WL 4164833, at *3 (W.D. Va. July 9,
2015) (Urbanski, J.) (“Rule 60(b)(6) applies to ‘extraordinary’ circumstances.”) (citing
Ackermann v. United States, 340 U.S. 193, 202 (1950)). Although I do not find that Rule 60
allows the requested relief, I do find that the Lord Plaintiffs’ request is procedurally proper under
Rule 24. See, e.g., Public Citizen, 858 F.2d at 783–85 (collecting cases). In Public Citizen, the
First Circuit Court of Appeals, interpreting Rule 24, agreed with the approach of the “Fifth
Circuit[, which] has previously held that intervention is ‘the procedurally correct course’ for
third-party challengers to protective orders.” 858 F.2d at 783 (quoting In re Beef Indus. Antitrust
Litig., 589 F.2d 786, 789 (5th Cir. 1979)). The court noted “that postjudgment intervention is not
altogether rare” and that numerous other courts of appeals “have allowed third parties to
intervene in cases” that had been closed for several years. Id. at 785.

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The Lord Plaintiffs’ ability to intervene to seek modification of the Crawford Protective
Order finds further support in that Order itself. See JTH Tax, Inc., 359 F.3d at 705 (“[D]istrict
courts are in the best position to interpret their own orders.”). Plaintiffs argue the Court can
modify the Crawford Protective Order because, by its own terms, the “Order shall remain
binding after the conclusion of this case unless otherwise ordered by the Court, and the Court
shall retain jurisdiction overall all parties bound [there]by for the purposes of enforcing this
Order,” Prot. Order ¶ 14; see Supp’l Br. in Supp. of Mot. 4. Separately, they argue that federal
district courts have “inherent power to modify discovery-related protective orders, even after
judgment, when circumstances justify.” Supp’l Br. in Supp. of Mot. 2–3 (quoting Public Citizen,
858 F.2d at 782); see generally Public Citizen, 858 F.2d at 782 (“During the pendency of the
protective order, including times after judgment, the order acted as an injunction, setting forth
strict limitations on the parties’ use of discovery materials. In support of this ‘injunction,’ the
district court necessarily had the power to enforce the order, at any point while the order was in
effect, including periods after judgment. . . . Correlative with this power to enforce, the district
court necessarily also retained power to modify the protective order in light of changed
circumstances.”). Senex responds that the Lord Plaintiffs cannot rely on paragraph 14 because it
says the Court “shall retain jurisdiction . . . for the purposes of enforcing this Order,” Prot. Order
¶ 14 (emphasis added), whereas the Lord Plaintiffs want a ruling “modifying” the Order. Def.’s
Supp’l Br. in Opp’n 5.
The stipulated Protective Order’s text unambiguously empowers this Court to issue an
Order allowing the attorneys who are counsel of record for Plaintiffs both in Crawford and in
Lord to share with the other Plaintiffs’ attorneys in Lord their mental impressions and
recollections of information derived from materials that Defendant Senex Law designated

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“Confidential” under that Order and produced during pretrial discovery in Crawford. Prot. Order
¶¶ 4, 6, 14; see JTH Tax, Inc., 359 F.3d at 705. First, the parties agreed that the Protective Order
would “remain binding after the conclusion of this case unless otherwise ordered by the Court,”
Prot. Order ¶ 14 (emphasis added), and that the Court retained jurisdiction “for purposes of
enforcing” its terms, id. The Protective Order is still in effect even though this case was closed in
December 2018. Second, the Court’s power to enforce the Protective Order necessarily includes
the power to interpret its terms, see Scott v. Clarke, 355 F. Supp. 3d 472, 490, 503 (W.D. Va.
2019), and “to modify the protective order in light of changed circumstances,” Public Citizen,
858 F.2d at 782.
Third, the Protective Order’s text and structure make clear that the default rule against
“disclosing” confidential materials, Prot. Order ¶ 6, and any “information derived therefrom,”
was not intended to be absolute. Paragraph 6 explicitly allows the receiving party to disclose
such materials with “prior written permission from the designating party or an order by the
Court.” Id. If the designating party consents or the Court so orders, then confidential materials
and information derived therefrom may be “disclosed to a[] person other than” attorneys of
record and their support staff who worked on the Crawford case, id., including any time “after
the conclusion of the case” so long as the Protective Order remains in effect, id. ¶ 14. Cf. Scott,
355 F. Supp. 3d at 503 (“[W]hen, as here, a contract is not ambiguous, its meaning is a question
of law for the Court to decide.”). Thus, the Protective Order itself authorizes this Court to grant
the Lord Plaintiffs’ requested order.
Fourth, Senex’s arguments relating to the Settlement Agreement’s confidentially
provision, see Ex. 1, at 3 ¶ 1.F, are not persuasive. The Settlement Agreement & Release is a
private contract between the Crawford parties. E.g., Ex. 1, at 4–5 (consideration, choice of law,

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severability, and merger clauses); see Byrum v. Bear Inv. Co., 936 F.2d 173, 175 (4th Cir. 1991);
Scott, 355 F. Supp. 3d at 493–94 & n.16 (W.D. Va. 2019). The terms of that contract do not
affect this Court’s independent authority to interpret, modify, and/or enforce its own Protective
Order entered much earlier in this litigation, Prot. Order ¶¶ 6, 9, 14; Public Citizen, 858 F.2d at
782–83. This Memorandum Opinion & Order interprets and applies the terms of the Crawford
stipulated Protective Order to the facts presented by the Lord Plaintiffs’ motion and supporting
arguments. This decision does not require the Court to consider any person’s or party’s rights or
responsibilities under the Settlement Agreement & Release, and nothing in this Memorandum
Opinion & Order shall be construed as interpreting that document.
Finally, the Court finds good cause to issue a narrow Order allowing the attorneys who
are counsel of record for Plaintiffs both in Crawford and in Lord to share with the other
Plaintiffs’ attorneys in Lord their recollections and mental impressions of information derived
from materials that Defendant Senex Law designated “Confidential” under the stipulated
Protective Order and produced during pretrial discovery in Crawford. Prot. Order ¶¶ 4, 6; see
Fed. R. Civ. P. 1 (“These rules . . . . should be construed, administered, and employed by the
court and the parties to secure the just, speedy, and inexpensive determination of every action
and proceeding.”); Hopei Garments (Hong Kong), Ltd. v. Oslo Trading Co., Inc., No. 87 CV
932, 1988 WL 25139, at *3 (S.D.N.Y. Mar. 8, 1988) (“There is a ‘duty imposed upon counsel to
deal fairly and sincerely with the court and opposing counsel so as to conserve the time and
expense of all, and that actions may be litigated in an orderly manner.’” (quoting Basso v. Utah
Power & Light Co., 495 F.2d 906, 910 n.1 (10th Cir. 1974)). Senex Law does not object to
Plaintiffs’ counsel from Crawford using in the Lord case their recollections and mental
impressions of the confidential materials from Crawford; rather, Senex Law objects to Plaintiffs’

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counsel sharing their recollections and mental impressions with co-counsel in Lord. Other than
asserting a general unfairness, Senex Law has not identified any harm that it will suffer from
Plaintiffs’ counsel in Lord being able to confer freely about their recollections and mental
impressions. Since entry of the Protective Order, and the closing of the Crawford case, Plaintiffs’
counsel from Crawford have initiated different litigation against Senex Law, and they seek to
confer fully with their co-counsel in Lord. Their motion does not seek to use the actual
documents produced in Crawford, and I do not address that issue here. Instead, I merely find that
the stipulated Protective Order does not prohibit Plaintiffs’ counsel in Crawford from using or
sharing their mental impressions and recollections of “confidential” materials produced in that
case under the Protective Order with their co-counsel in Lord.
III. Conclusion
For the foregoing reasons, the Lord Plaintiffs’ “Motion to Intervene for Purposes of
Partial Relief from Protective Order,” ECF No. 140, is GRANTED to the extent consistent with
this Memorandum Opinion & Order. Attorneys who are counsel of record for Plaintiffs both in
Crawford and in Lord may, consistent with paragraphs 4, 6, and 14 of the Protective Order, ECF
No. 70, share with other Plaintiffs’ attorneys in Lord their recollections and mental impressions
of information derived from materials that Defendant Senex Law designated “confidential”
under the Protective Order and produced during pretrial discovery in this case. This Order does
not authorize the distribution or use of the underlying “Confidential Materials” or “ConfidentialAEO Materials” that Senex previously produced in pretrial discovery, see Prot. Order ¶¶ 4–5, 6,
9, or of any written “summaries, extracts, compilations, notes, or other attorney work product
containing Confidential Materials and/or Confidential-AEO Materials (with the exception of

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drafts of pleadings filed with the Court),” that Plaintiffs’ counsel returned to Senex or destroyed
after the conclusion of the Crawford case, id. ¶ 13.
IT IS SO ORDERED
The Clerk is directed to send certified copies of this Memorandum Opinion & Order to
the parties in Crawford and to counsel for Intervenors.
ENTERED: March 21, 2022

Joel C. Hoppe
United States Magistrate Judge

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