United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER OVERRULING
PLAINTIFF'S RULE 72(A) OBJECTION TO MAGISTRATE
Waddoups, United States District Judge
the court is Plaintiff Bank of the West's Rule 72(a)
Objection (ECF No. 198) to Magistrate Judge Brook Wells'
March 1, 2018 Memorandum Decision and Order. (ECF No. 196.)
On March 1, 2018, Judge Wells denied Bank of the West's
Motion to Unseal Documents Marked Confidential by Defendants.
(ECF No. 186.) Judge Wells found that the Defendants met
their burden “to warrant continued protection of the
documents at issue.” (ECF No. 196 at 3.) Bank of the
West moves the court for review of Judge Wells' ruling,
arguing that it was clearly erroneous and contrary to law.
(ECF No. 198 at 9.) The court concludes that Judge Wells'
ruling was neither clearly erroneous, nor contrary to law.
Bank of the West's objection is overruled.
the West's Objection is about whether certain documents
belonging to the Defendants should be designated as
“confidential information” under the Standard
Protective Order. Both Bank of the West and the Defendants
agree that “[i]n this action, the [D]efendants . . .
have produced thousands of pages of documents marked
‘Confidential' under the governing Standard
Protective Order . . . .” (ECF No. 186 at 2); see
also (ECF No. 125 at 2) (“Producing Parties have
produced thousands of pages containing sensitive and
confidential financial and business information.”) On
March 23, 2017, Bank of the West's counsel sent
Defendants' counsel a letter “pursuant to Paragraph
9(b) of the Protective Order, ” challenging the
Defendants' confidential designation of those documents.
(See ECF No. 186-2 at 3.) On March 30, 2017, the
Defendants' counsel sent a responsive letter informing
Bank of the West that they would de-designate some of the
documents as non-confidential, but would not be
de-designating “any of their financial records, bank
statements, credit card statements, tax returns, or operating
agreements . . . .” (ECF No. 186-3 at 2.). The
Defendants did not file a motion at this time.
April 12, 2017, Bank of the West filed a “Notice re:
Designation of Documents.” (ECF No. 123.) In this
Notice, Bank of the West argued to the Magistrate Court that
because the Defendants had not filed a motion as required,
“that by operation of Paragraph 9(c) of the Protective
Order, the documents produced by defendants . . . are no
longer designated ‘Confidential.' ”
(See ECF No. 186 at 3) (citing ECF No. 123.) On
April 13, 2017, Defendants filed a response (ECF No. 124) to
Bank of the West's Notice. On that same day, Defendants
filed a Motion to Expedite Discovery, moving “the Court
for an order to maintain the Confidential designation of
documents produced by Defendants . . . .” (ECF No. 125
at 2.) On April 20, 2017, Bank of the West filed a Memorandum
in Opposition to Defendants' Short Form Discovery Motion.
(ECF No. 126.) On May 3, 2017, the Magistrate Court denied
the Defendants' motion without prejudice, and ordered
“the parties . . . to meet and confer regarding the
designation of the remaining documents at issue.” (ECF
No. 138 at 7.) Bank of the West did not file an Objection to
the Magistrate Court's decision at this time.
parties did not reach an ultimate resolution, but on May 19,
2017 they filed a Notice of Stipulation, temporarily agreeing
“that all documents that Defendants continue to
designate as ‘Confidential' are subject to the
protections in the Standard Protective Order, and, if filed
with the Court, shall be filed under seal.” (ECF No.
141 at 2.) In this agreement, Bank of the West
“reserve[d] its right to argue at a later time . . .
that the documents are not ‘Confidential.' ”
(ECF No. 141 at 3.)
January 17, 2018, Bank of the West exercised its right and
filed a Motion to Unseal Documents Marked Confidential by
Defendants. (ECF No. 186.) In this Motion to Unseal, Bank of
the West sought “to obtain an order from the Court
de-designating all of the documents marked
‘Confidential' so that [Bank of the West] [would]
no longer [be] required to file them under seal and so that
the courtroom [would] not [be] closed to the public at
trial.” (ECF No. 186 at 2.)
January 31, 2017, the Defendants filed a Memorandum in
Opposition. (ECF No. 191.) In the Opposition, the Defendants
argued that the documents at issue “warrant a
confidential designation.” (ECF No. 191 at 3.) The
Defendants argued that the “documents reveal the scope
and the entirety of the Producing Parties' financial and
businesses affairs over the past ten years.” (ECF No.
191 at 4.) And the Defendants argued that “because
Defendants are engaged in the business of buying, selling,
and leasing real property, allowing the public to have access
to information regarding their operations and financial
condition is disadvantageous as it affects their negotiating
position.” (ECF No. 191 at 4.) The Defendants attached
a privilege log to their Opposition. (ECF No. 191-1.) The
privilege log included a description of those documents
marked “confidential, ” and included
corresponding Bates numbers. (ECF No. 191-1 at 1-2.)
March 13, 2018, Bank of the West filed a Reply (ECF No. 194)
to the Defendants Opposition. In this Reply, Bank of the West
argued that Defendants did not meet their “heavy
burden” “to maintain the confidential designation
for any of their documents.” (ECF No. 194 at 2.) Bank
of the West argued that “Defendants [did] not specify
how public disclosure of their financial information
would affect their negotiating position or who
[would] gain a competitive advantage if they gain access to
this information.” (ECF No. 194 at 2) (emphasis in
original). Bank of the West also argued that
“Defendants did not specify which documents
contain information that would affect their negotiation
position.” (ECF No. 194 at 2) (emphasis in original).
March 1, 2018, the Magistrate Court issued a Memorandum
Decision and Order (ECF No. 196) denying Bank of the
West's Motion to Unseal Documents Marked Confidential by
Defendants. The Magistrate Court “reviewed the
privilege log” and found that “the documents fit
the definition of CONFIDENTIAL INFORMATION” under the
Standard Protective Order. (ECF No. 196 at 3.) The Magistrate
Court also found that “Defendants [did] enough to
warrant continued protection of the documents at
issue.” (ECF No. 196 at 3.)
Rule 72(a) Objections
Federal Rule of Civil Procedure 72(a) a district court will
overturn a magistrate judge's decision if it is
“clearly erroneous or is contrary to law.”
Fed.R.Civ.P. 72(a). A court reviewing a magistrate
judge's decision under the clearly erroneous standard
must affirm unless the record leaves the court with the
“definite and firm conviction that a mistake has been
committed.” Allen v. Sybase, Inc., 468 F.3d
642, 658 (10th Cir. 2006) (citation omitted).
the West argues that “contrary to [the Magistrate
Court's] Order, Defendants failed to meet their
burden.” (ECF No. 198 at 6.) Bank of the West appears
to argue that the Magistrate Court's Order was clearly
erroneous and contrary to law, in part, because the
Magistrate Court “largely ignored” “the
legal authority cited by [Bank of the West]”
“requiring Defendants to show how they would suffer
economic harm . . . .” (See ECF No. 198 at
7-9.) The “legal authority” cited by [Bank of the
West] was PHL Variable Ins. Co. v. Sheldon Hathaway
Family Ins. Tr., 2012 WL 12888387, at *2 (D. Utah Dec.
6, 2012) and Clearone Commc'ns, Inc. v. Chiang,
No., 2007 WL 2572398, at *1 (D. Utah Sept. 5, 2007). (ECF No.
198 at 7.) The court addresses each of these cases, and then
addresses JetAway Aviation, LLC v. Bd. of Cty.
Comm'rs of Cty. of Montrose, Colo., 754 F.3d 824
(10th Cir. 2014), another case Bank of the West cites.
PHL Variable, “the Court entered a Protective
Order” “regarding the handling of confidential
materials.” PHL Variable, 2012 WL 12888387,
*1. “The Protective Order govern[ed] ‘the
handling of . . . depositions . . . .' ”
Id. at *1. The plaintiff in that case
“designated the entire deposition of [a witness] as
confidential pursuant to the Protective Order.”
Id. at *2. “The Protective Order permit[ted]
[the] parties to challenge the designations made by another
party, first between themselves and then by involving the
Court.” Id. at *1. The defendant filed a
motion to remove the confidential designation. See
id. at *2. But the plaintiff did “not file a
formal objection with the Court to [defendant's]”
motion to remove the confidential designation. Id.
at *2. The court nevertheless reviewed the transcript of the
deposition at issue. Id. at *3. The court noted that
the “designation of the entire transcript as
confidential [was] not supported by the actual testimony
within the transcript nor the Protective Order itself.”