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Rowan v. Sunflower Electric Power Corp.

United States District Court, D. Kansas

February 21, 2017

MICHAEL ROWAN, Plaintiff,
v.
SUNFLOWER ELECTRIC POWER CORPORATION,, Defendants.

          MEMORANDUM AND ORDER

          Teresa J. James U.S. Magistrate Judge

         This matter is before the Court on Defendant Power Constructors, Inc.'s Motion to File One Day Out of Time and to Strike Confidential Designation of Material by Plaintiff (ECF No. 383). Power challenges the claim by Plaintiff that the deposition transcripts of James Stovall and Randal Miller are “Confidential” pursuant to the Protective Order entered in this case.[1] Plaintiff opposes the motion. For the reasons discussed below, the Court grants the motion and strikes the confidential designations.

         I. Relevant Background

         Pursuant to notice by Plaintiff, the parties deposed James Stovall on January 5, 2016 and Randal Miller on April 4, 2016. In an email dated December 5, 2016, Plaintiff's counsel wrote the following to Defendants' counsel: “Please consider this Plaintiff's Notice of Designation of Confidentiality Pursuant to the Protective Order of Deposition Transcripts of James Stovall and Randal Miller, as well as exhibits to those depositions.”[2] Counsel for Power responded in emails dated December 15 and 21, 2016, asserting the designation was both untimely and improper. Plaintiff has refused to withdraw the designation, and this motion followed.

         Plaintiff disputes Power has made a reasonable effort to confer on this issue, asserting that counsel never actually spoke about their differences. Power states that counsel had face-to-face discussions while travelling “regarding issues surrounding Stovall's and Miller's deposition testimony.”[3] These discussions followed emails which clearly conveyed Power's objection to Plaintiff's confidentially designations of the Stovall and Miller depositions. While Power's reply isn't a definitive expression that counsel specifically discussed the confidentiality designation, the Court will take it as such and will find that Power satisfied its obligations pursuant to Fed.R.Civ.P. 37(a)(1), D. Kan. Rule 37.2, and this Court's orders. The Court also finds good cause to allow Defendant to bring this motion one day out of time.

         II. Summary of the Parties' Arguments

         Power asserts Plaintiff's confidential designation is untimely because it attaches to depositions taken eight and eleven months ago. Power also contends the designation of entire deposition transcripts is not sufficiently specific as required by the Protective Order. As to the exhibits, Power asserts that Plaintiff cannot deem confidential documents Power has produced. Finally, Power argues Plaintiff has waived any confidentiality by using the transcripts and exhibits in depositions with no claim of privilege, and that the transcripts have been reviewed and relied upon by both sides' experts without objection.

         With respect to Power's specificity argument, Plaintiff attempts to narrow the designation by referring to the subject matter of portions of the transcripts he deems confidential. Plaintiff withdraws the designation of confidentiality with respect to documents Power produced, and asserts no waiver occurred because the Protective Order allows disclosure of confidential material to expert and fact witnesses. And although Plaintiff has not filed a cross motion, Plaintiff asks the Court to impose conditions and order relief against Power.

         III. Legal Standard

         Federal Rule of Civil Procedure 26 authorizes a court “for good cause” to issue “an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, ” including that “a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way.”[4] The Protective Order in this case explicitly directs that the burden of proving the necessity of a confidentiality designation remains with the party asserting confidentiality.[5] When a party challenges such designation, the “good cause” standard of Rule 26(c) governs, and the party asserting confidentiality must make a particular showing for each document at issue of specific prejudice or hardship that will arise from its disclosure.[6]

         IV. The Documents Identified as Confidential

         As limited in his response to the instant motion, Plaintiff seeks to designate as confidential the following parts of the Miller and Stovall transcripts:

With regard to Mr. Miller's deposition, Plaintiff designates as confidential portions related to the incident on August 29, 2013 wherein Plaintiff was injured, as well as portions relating to the preconstruction meeting and notice given to Power and the utilities about Track installing guard structures under the energized line.
With regard to Mr. Stovall's deposition, Plaintiff designates as confidential the portions of the deposition related to the incident on August 29, 2013 wherein Plaintiff was injured, as well as portions relating to the bidding process, warnings given to Power and the utilities about the risk of awarding Track the subcontract, and the communications from Defendants about safety concerns after Track was awarded the subcontract.[7]

         V. Analysis

         Because a protective order, agreed to by the parties, has been entered in this case, the Court begins by determining whether the documents in question fall within the definition of confidential information ...


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