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Leadholm v. City of Commerce City

United States District Court, D. Colorado

November 16, 2017



          Michael E. Hegarty, United States Magistrate Judge.

         On September 1, 2017, the Court issued an order granting in part and denying in part the Defendants' motion seeking protection, pursuant to the deliberative process privilege, from producing to the Plaintiff documents exchanged between Commerce City and the Department of Justice (“DOJ”) during an ongoing audit. ECF No. 109.[1] In that order, the Court held that it must review the withheld documents to discern whether they were protected by the privilege. Id. Defendants then submitted more than 28, 000 pages in electronic format for the Court's in camera review on September 12, 2017. ECF No. 115.

         On September 21, 2017, Commerce City filed a motion seeking the Court's “determination of disputed language in the proposed Stipulated Protective Order.” ECF No. 119. The Court denied the motion without prejudice for Commerce City's failure to comply with the Court's practice standard to seek a conference with the Court before filing motions concerning discovery disputes. ECF No. 120.

         The Court then held a discovery conference in this case on September 25, 2017, at which defense counsel confirmed that its in camera submission encompasses copies of all documents (in its possession) that were produced and exchanged between the DOJ and Commerce City during the audit. Tr. 11: 10-17; 26: 19-25, 27: 1-13, ECF No. 124. These 28, 000 pages of documents contain no Bates numbers, there appear to be no categories into which the documents were divided, and the City provided no guidance as to which documents were produced by the City and which were produced by the DOJ. Notably, the City did provide an “index” in a spreadsheet format listing the documents by, inter alia, file name and date created; therefore, the Court is able to discern-to the extent relevant-which documents were created before and after the City's request for DOJ assistance.

         Thus, during the conference, the Court raised the issue of the unorganized submission, approved the Defendants' versions of paragraphs 4 and 7 of the proposed blanket protective order, and discussed with the parties whether a written request from the DOJ, a third party, seeking restricted access to material produced during the audit is proper in this case. Following these discussions, the Court ordered briefing of the following issues: (1) the legal effect of the DOJ's request for restriction of audit documents in this case (Tr. 24: 14-16); (2) Commerce City's “additional reasons” why it believes the audit materials should be kept confidential (Tr. 25: 6-9); and (3) whether the blanket protective order's “attorney's eyes only” provision may be modified to provide access of confidential information to a party's expert (Tr. 31: 21-25, 32: 1-3).

         Commerce City timely filed a motion to restrict access to the audit documents on October 11, 2017 and the motion was fully briefed by October 27, 2017. In essence, Commerce City argues that (1) “[t]he dissemination of materials over which the DOJ has asserted a proprietary interest may impinge on the DOJ's audit process prior to the rending of any assessment of, and recommendations to [Commerce City]”; (2) the proposed protective order contains a dispute resolution mechanism that is sufficient to provide the Plaintiff adequate recourse for any objections to documents marked as “confidential”; and (3) the City will not mark any documents as “attorney's eyes only” that are relevant to the Plaintiff's failure to train theories.

         Plaintiff counters that the City admits that some documents from the audit are publicly available and fails to show good cause to restrict each document; the DOJ's request is to restrict only a certain category of documents; the City fails to demonstrate a “clearly defined and serious injury” that will result from dissemination of the audit documents; and the City fails to establish why an “attorney's eyes only” provision is necessary in the protective order.

         Commerce City replies that Plaintiff erroneously assumes the City intends to “designate the ‘entire' DOJ audit as confidential” and affirms that it intends only “to make a ‘blanket' designation of those documents identified in the DOJ's written mandate.” Further, the City asserts that it has identified clearly defined and serious injuries if the documents are disseminated and its interest in maintaining confidentiality of the documents outweighs any public interest. Finally, the City contends that the “attorney's eyes only” provision was included in the proposed protective order as a “prophylactic” measure, which may be never invoked, and that the provision provides an avenue for redress if the Plaintiff objects.

         I. Legal Standards

         Rule 26(c) of the Federal Rules of Civil Procedure provides that a court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. Fed.R.Civ.P. 26(c). The party seeking a protective order bears the burden of establishing its necessity, Centurion Indus., Inc. v. Warren Steurer & Assocs., 665 F.2d 323, 325 (10th Cir. 1981), but the entry of a protective order is left to the sound discretion of the court. See Rohrbough v. Harris, 549 F.3d 1313, 1321 (10th Cir. 2008). As part of the exercise of its discretion, the court may also specify the terms for disclosure. Fed.R.Civ.P. 26(c)(1)(B).

         The good cause standard is “highly flexible, having been designed to accommodate all relevant interests as they arise.” See Rohrbough, 549 F.3d at 1321 (citation omitted). However, conclusory assertions are insufficient to show good cause. Klesch & Co. Ltd. v. Liberty Media Corp., 217 F.R.D. 517, 524 (D. Colo. 2003). “Instead, the party seeking a protective order must show that disclosure will result in a clearly defined and serious injury to the party seeking protection.” Id. (citing Exum v. United States Olympic Comm., 209 F.R.D. 201, 206 (D. Colo. 2002) (internal citations omitted)). As a general rule, the “good cause” calculation requires that the court balance “the [moving] party's need for information against the injury which might result from unrestricted disclosure.” Exum, 209 F.R.D at 206 (citations omitted).

         II. Analysis

         One issue before the Court involves the scope of a provision in the parties' proposed blanket protective order and the others do not. The Court will first address the protective order provision, then the other issues in turn.

         A. Attorney's ...

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