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Bank of West v. Whitney

United States District Court, D. Utah, Central Division

May 3, 2017

BANK OF THE WEST, Plaintiff,
v.
NEWELL K. WHITNEY; CONNIE T. WHITNEY; Newell and Connie Whitney, et al., Defendants.

          Clark Waddoups District Judge

          MEMORANDUM DECISION AND ORDER DENYING WITHOUT PREJUDICE MOTION TO EXPEDITE DISCOVERY DISPUTE

          Brooke C. Wells United States Magistrate Judge

         Defendants move the “court for an order to maintain the Confidential designation of documents produced by Defendants and third-party Mantyla McReynolds (collectively ‘Producing Parties')”[1] in accordance with the Standard Protective Order. Under DUCivR 26-2 the District of Utah has adopted a Standard Protective Order to help move cases toward resolution.[2] As set forth below the court will deny the motion without prejudice.

         BACKGROUND

         On March 23, 2017 Plaintiff sent Defendants a letter challenging the confidential designation of “all of the documents produced by Defendants and their accounting firm, Mantyla McReynolds ….”[3] Defendants' counsel responded within five business days via letter on March 30, 2017, disputing Plaintiff's challenge and noting that the Standard Protective Order “expressly allows documents to be designated as Confidential where they contain ‘confidential or proprietary technical, scientific, financial, business, health, or medical information.'”[4] In an effort to accommodate Plaintiff's request for re-designation, Defendants reviewed the documents and “identified some [where they] were willing to remove the confidentiality designation . . . .”[5]The re-designated documents were transmitted to Plaintiff's counsel on April 6, 2017. “At this point, Defendants believed that the parties had resolved the dispute without Court involvement.”[6]

         There was no further communication about the documents at issue until Plaintiff filed a Notice Re: Designation of Documents on April 12, 2017 with the court.[7] In that filing Plaintiff asserted “all documents produced by defendants and their accounting firm, Mantyla McReynolds ….”[8] are no longer designated as Confidential because Defendants failed to move the court to maintain their destination within the required timeframe under the Standard Protective Order. Plaintiff made specific reference to alleged violations of Paragraph 9 of the Standard Protective Order.

         The following day on April 12, 2017, Defendants filed a response to the notice of designation of documents and filed the instant motion.

         DISCUSSION

         (i) The Party's Actions and the Standard Protective Order Support Maintaining the Documents Confidential Designation.

         Defendants seek to maintain the Confidentiality designation of “documents produced by Defendants and third-party Mantyla McReynolds (collectively “Producing Parties”).”[9] The Producing Parties have produced “thousands of pages containing sensitive and confidential financial and business information”[10] and only seek to maintain as confidential only the most sensitive documents that they argue should not be publicly disclosed. These documents include “bank statements, financial statements, tax returns, non-public operating agreements, credit card statements, and transaction reports.”[11]

         In support Defendants argue the protective order expressly allows documents to be designated as Confidential where they contain “confidential or proprietary technical, scientific, financial, business, health, or medical information designated as such by the producing party.”[12]Defendants point to three recent cases where this court has upheld confidentiality designations beyond account numbers, social security numbers or other identifying information.[13]

         Plaintiff does not contest this argument and the undersigned agrees with Defendants position that the Standard Protective Order expressly allows documents to be designated as Confidential if they fall within certain categories. It is clear from the plain language of the Standard Protective Order that certain documents beyond identifying information may be marked Confidential.[14]

         Instead of contesting that argument, Plaintiff argues Defendants have failed to timely move the court to maintain the documents Confidentiality status. On March 23, 2017, Plaintiff sent Defendants a letter challenging the Confidential designation and Defendants failed to file a motion until April 13th to maintain the designation. Specifically Plaintiff points to Paragraph 9 of the Standard Protective Order asserting that “within five business days of the notification [challenging a designation of documents], the producing party must ‘move the court for a protective order or any other order to maintain the designation.'”[15] Plaintiff's argument appears to have persuasive value but when taken in context of the parties' failures to communicate- including both the Plaintiff and Defendants-and the language found in the Standard Protective Order, the court declines to de-designate the documents at this time.

         Section 9 of the Standard Protective Order provides in relevant part:[16]

Challenge to Designation
b) Notwithstanding anything set forth in paragraph 2(a) and (b) herein, any receiving party may disagree with the designation of any information received from the producing party as CONFIDENTIAL INFORMATION or CONFIDENTIAL INFORMATION - ATTORNEYS EYES ONLY. In that case, any receiving party desiring to disclose or to permit inspection of the same otherwise than is permitted in this Order, may request the producing party in writing to change the designation, stating the reasons in ...

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