United States District Court, D. New Mexico
SAUL MARTINEZ, on Behalf of Himself and on Behalf of All Others Similarly Situated, Plaintiff,
SCHLUMBERGER TECHNOLOGY CORPORATION, Defendant.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION FOR ENTRY OF PROTECTIVE ORDER AND
CONFIDENTIALITY AGREEMENT (Doc. 41)
LOURDES A. MARTINEZ, UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Defendant Schlumberger
Technology Corporation's Opposed Motion for Entry of
Protective Order and Confidentiality Agreement (Doc.
41), filed February 6, 2017. Plaintiff filed a response
to the motion on February 21, 2017 [Doc. 47], and
Defendant filed a reply on March 7, 2017 [Doc. 50].
Having considered the motion, response, reply, record of this
case, and relevant law, the Court FINDS that the motion shall
be GRANTED in part and DENIED in part.
states that the parties have been unable to agree on the
terms of a protective order and confidentiality agreement,
and asks the Court to enter Defendant's proposed order.
[Doc. 41 at 3]. Defendant contends that Plaintiff
has insisted on changes to Defendant's proposed
protective order that are unsupportable, and Defendant asks
the Court to enter the proposed order as is. See Id.
at 5-6 (citing proposed order at Doc. 41-2).
response, Plaintiff states that he objects to Defendant's
proposed protective order because “it contains
provisions that are contrary to the law and will give
Defendant sole authority over whether a document is
confidential rather than the Court.” [Doc. 47
at 1]. Plaintiff objects to: (1) Defendant's proposal to
allow all documents to be filed under seal without prior
Court approval; (2) Defendant's proposal to limit
Plaintiff's counsel's ability to question witnesses
concerning documents designated as confidential; and (3)
Defendant's proposal to require third parties to sign the
protective order. Id. at 2. Plaintiff states that,
in a case in North Dakota, “Defendant has designated
every document produced in discovery as confidential, ”
and Plaintiff contends that “Defendant is now seeking
to bring this litigation tactic to New Mexico.”
Id. at 3. Plaintiff further contends that
Defendant's proposed protective order will prevent the
public from having access to court records, and that it would
improperly put the burden on Plaintiff to prove why a
document should not be sealed, instead of on Defendant to
prove why a document is confidential. Id. at 4-6.
reply, Defendant states that good cause supports the entry of
the proposed protective order because Defendant has the right
to maintain the confidentiality of its proprietary and
competitively sensitive materials. [Doc. 50 at 1].
Defendant states that the burden of proof is properly
allocated because the proposed protective order provides that
only limited categories of documents may be designated as
confidential. Id. at 2-3. Nevertheless, Defendant
agrees to add language to the proposed protective order that,
in the event a party objects to designating material as
confidential, the designating party must “specify all
reasons why confidentiality should apply to the Discovery
Materials whose designation has been challenged, ” and
that, if the parties are unable to reach an agreement as to
the designation, the objecting party can move the Court for
an order that the challenged material is not confidential,
and “[t]he party that wishes the Discovery Material to
retain the ‘Confidential' or ‘Highly
Confidential' designation shall bear the burden of proof
in any challenge to such a designation.” Id.
at 4 (quoting proposed protective order, Doc. 50-1
at 9-10, ¶ 14). Defendant contends that Plaintiff's
objection regarding counsel's ability to question
witnesses about confidential information is without merit
because the proposed protective order states that
“[p]ersons may be deposed regarding ‘Confidential
Information' or ‘Highly Confidential”
information of which they have knowledge.” Id.
at 5 (quoting proposed protective order, Doc. 50-1
at 7, ¶ 12). Defendant proposes to add language to the
protective order that would exempt deponents who are properly
shown confidential information during a deposition from being
required to sign the agreement to be bound to the terms of
the protective order. Id. at 6 (citing proposed
protective order, Doc. 50-1 at 3 and 5, ¶¶
3 and 5). As to other third parties, Defendant contends that
Plaintiff can avoid having couriers sign the agreement by
placing confidential materials in a sealed envelope, and that
“[a]ny vendor routinely used by a law firm should
already be under an agreement to preserve the confidentiality
of confidential materials.” Id.
Court finds that Defendant's changes to the proposed
protective order, as set forth in Document 50-1
attached to Defendant's reply brief, are acceptable, and,
with some additional edits by the Court, sufficiently address
Plaintiff's objections. While Plaintiff objects that the
proposed protective order allows a party to designate a
document as confidential absent prior Court approval (see
Doc. 41 at 2), parties routinely enter into
confidentiality agreements that allow the parties to
designate documents as confidential, and to file a motion
with the Court if a party disagrees with a designation and
the parties are unable to come to an agreement on their own.
Plaintiff's contention that Defendant has designated
every document as confidential in another case is irrelevant
at this time since there is no current dispute regarding this
alleged behavior before the Court. Importantly, the
protective order provides that a party may only designate
materials as confidential if they “include trade
secrets, confidential research, development, or commercial
information, or confidential information related to business
operations, finances, employees, or medical condition as
described in the Federal Rules of Civil Procedure
26(c)(1)(G).” [Doc. 50-1 at 3, ¶¶
2.1 and 2.2]. If Defendant designates as confidential
material that does not contain the above-listed information,
and the parties are unable to agree on a solution, then
Plaintiff may bring a motion to the Court raising that issue
at that time, and the protective order provides that the
burden would be on the designating party to prove that the
information is confidential. See Id. at 9-10, ¶
14. The Court further finds that Defendant has sufficiently
addressed Plaintiff's objections regarding depositions by
exempting deponents who are properly shown confidential
information during a deposition from being required to sign
the agreement. See Id. at 3 and 5, ¶¶ 3
and 5. Finally, the Court finds no merit to Plaintiff's
contention that the protective order will prevent the public
from having access to court records because only confidential
materials will be designated as confidential, not the
parties' pleadings or the Court's orders. In
addition, the Court's changes to Paragraph 9 of the
protective order (as set forth below), address the situation
where the parties need to include confidential information in
documents filed on the Court's docket.
on the foregoing, the Court finds that the proposed
protective order submitted at Document 50-1 attached
to Defendant's reply brief, is acceptable with the
following edits by the Court:
1. ¶ 4.e. - add “Subject to Paragraph 12” to
the beginning of this paragraph.
2. ¶ 6 - add “subject to Paragraph 12” at
the end of this paragraph.
3. ¶ 9 - rewrite entire paragraph to state: “All
pleadings that contain ‘Confidential Information'
or ‘Highly Confidential Information' shall be filed
in the public record in redacted form, with as few redactions
as possible, and an unredacted version shall be filed under
seal. Nothing herein shall prevent a party from utilizing the
other party's ‘Confidential Information' or
‘Highly Confidential Information' at the trial of
this case or in any pre-trial proceeding, subject to the
right of the Designating/Producing Party to seek protection
of such materials and information from the Court.”
4. ¶ 15 - add “Excluding the Court and persons
defined in Paragraphs 4(a) and 6(a)” to the beginning
of this paragraph.
THEREFORE ORDERED, for the reasons stated above, that
Defendant Schlumberger Technology Corporation's
Opposed Motion for Entry of Protective Order and
Confidentiality Agreement (Doc. 41) is GRANTED in part
and DENIED in part as described above.
FURTHER ORDERED that, within ten (10) days of the entry of
this Order, Defendant shall submit the proposed protective
order with the above-described ...