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Norris v. Excel Industries, Inc.

United States District Court, W.D. Virginia, Harrisonburg Division

July 20, 2015

PHYLLIS E. NORRIS, Administratrix of the Estate of Chester Cecil Norris, Plaintiff,
v.
EXCEL INDUSTRIES, INC., Defendant.

MEMORANDUM OPINION

Michael F. Urbanski United States District Judge

Before the court is plaintiff Phyllis Norris’ (“Norris”) Motion for Reconsideration, ECF No. 119, of the magistrate judge’s order determining certain documents disclosed by Excel Industries Inc. (“Excel”) as confidential under the protective order entered in this case. The matter has been fully briefed, and the parties did not request oral argument on the motion. For the reasons that follow, plaintiff’s motion is DENIED.

I.

In November 2014, defendant Excel Industries, Inc. filed a Motion for Non-Sharing Protective Order, ECF No. 35. Norris did not file an opposition. Non-dispositive motions in this case were referred to United States Magistrate Judge James G. Welsh under 28 U.S.C. § 636(b)(1)(A). The magistrate judge held a hearing on the motion and entered a protective order, ECF No. 40, allowing the parties to designate discovery materials as “CONFIDENTIAL” or “CONFIDENTIAL – HEIGHTENED PROTECTION” if the materials met certain criteria. Under the protective order, materials labeled “CONFIDENTIAL” include materials that are “confidential, proprietary and/or constitute[] a trade secret and which implicates common law and/or statutory business or privacy interests of the producing party” and “confidential research, development, or commercial information.” ECF No. 40 at *2 (internal quotation marks omitted). In order to designate materials as confidential, the designating party must have a good faith belief that the materials are, in fact, confidential as defined by the protective order. The non-designating party may then challenge the confidentiality of discovery material, and the designating party bears the burden of showing “good cause exists” for the material to be treated as confidential. Id. at *6. The protective order was entered on November 14, 2014, and Norris did not file any objections.

Months later, Norris objected to Excel’s designation of various documents and answers to interrogatories as confidential. Excel filed a motion asking the court to determine the confidentiality of the challenged documents, the parties briefed the issue, and the magistrate judge held a hearing on the motion. The magistrate judge granted Excel’s motion finding that “Excel has established good cause to support the confidential designations challenged by Plaintiff pursuant to the Protective Order in this matter.” ECF No. 101 at *1. Norris asks the court to reconsider the magistrate judge’s ruling.

II.

Norris objects to the magistrate judge’s ruling on a number of grounds. First, Norris argues that the magistrate judge “never made the requisite ‘good cause’ determination with respect to any categories of documents” in the umbrella protective order. ECF No. 119 at *7. Second, Norris claims that the other similar incidents information designated as confidential by Excel does not fit into any of the protected categories. Finally, Norris asserts that the magistrate judge failed to require Excel to establish good cause for its designations as set forth in the protective order and applied the wrong legal standard in his ruling on Excel’s motion to determine the confidentiality of the documents. In opposition, Excel argues that the magistrate judge did find good cause for the categories in the umbrella protective order, and the magistrate judge thoughtfully considered the challenged documents, the categories in the umbrella protective order, and controlling case law before finding that Excel had established good cause for its designations.

III.

A.

Federal Rule of Civil Procedure 72(a) permits a party to submit objections to a magistrate judge’s ruling on a nondispositive matter within fourteen days of the order. A magistrate judge’s nondispositive ruling will be set aside only if it is “clearly erroneous or contrary to law.” Fed.R.Civ.P. 72(a); see also 28 U.S.C. § 636(b)(1). A ruling is clearly erroneous if it is supported by evidence, but a review of the entire evidence leaves the court “with the definite and firm conviction that a mistake has been committed.” Minyard Enters., Inc. v. Se. Chem. & Solvent Co., 184 F.3d 373, 380 (4th Cir. 1999). If an order “‘fails to apply or misapplies relevant statutes, case law, or rules of procedure, ’” it is contrary to law. Buford v. Ammar’s Inc., No. 1:14cv00012, 2014 WL 753083, at *1 (W.D. Va. Nov. 24, 2014) (quoting United Mktg. Solutions, Inc. v. Fowler, No. 1:09-CV-1392-GBL-TCB, 2011 WL 837112, at *2 (E.D. Va. Mar. 2, 2011)).The court accords “considerable deference” to the magistrate judge’s decisions on discovery matters. Id. (citing In re Outside Wall Tire Litig., 267 F.R.D. 466, 470 (E.D. Va. 2010)).

To the extent that Norris argues the magistrate judge never made a finding that good cause exists to protect each category of information, such argument is untimely and waived. Rule 72 permits a party to object to a magistrate judge’s nondispositive ruling within fourteen days of entry of the order. Fed.R.Civ.P. 72(a). The magistrate judge entered the protective order in this case on November 14, 2014. While Norris raised the issue before the magistrate judge after Excel filed its motion for determination of confidentiality, she did not note any objection to the protective order until she filed her present motion for reconsideration on May 29, 2015. Accordingly, Norris’ failure to timely object to the protective order waived her right of review of the magistrate judge’s finding of good cause for the protective order’s designated categories. See Solis v. Malkani, 638 F.3d 269, 274 (4th Cir. 2011).

B.

Rule 26(c) of the Federal Rules of Civil Procedure permits the court to issue a protective order upon a showing of good cause. An umbrella protective order identifies categories of documents subject to protection and may be utilized when parties to litigation anticipate discovery to be voluminous. Accordingly, the umbrella protective order has “become a common feature of complex litigation in the federal courts” and is meant to “‘expedite production, reduce costs, and avoid the burden on the court of document-by-document adjudication.’” Minter v. Wells Fargo Bank, N.A., Civil Nos. WMN-07-3442, WMN-08-1642, 2010 WL 5418910, at *3 (D. Md. Dec. 23, 2010) (quoting Manual for Complex Litigation § 11.432 (4th ed. 2010)). Before entering an umbrella protective order, the court must find “good cause exists to protect each category” of documents described in the order. United States ex rel. Davis v. Prince, 753 F.Supp.2d 561, 566 (E.D. Va. 2010). Then the parties “may designate whether discovery materials fall within any of the enumerated good cause categories set forth in the protective order, ” and, in the event that a party challenges an opposing party’s designation of a particular document, “the party seeking to avoid disclosure has the burden of persuading the court that the designated material falls within a particular good cause category.” Id. at 566-67.

The protective order entered in this case is an umbrella protective order that identifies specific categories of information which may be designated as confidential. Under the protective order, “information that is confidential, proprietary and/or constitutes a trade secret and which implicates common law and/or statutory business or privacy interests of the producing party” may be designated as confidential. Other information subject to the protective order includes “confidential research, development, or commercial information.” ECF No. 40 at *2. The protective order also describes another category of information subject to protection: certain financial information which carried even narrower disclosure guidelines. Id. at *3-4. Before designating any material as “CONFIDENTIAL, ” the designating party must possess a “good faith belief that the information” falls into one of those ...


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