Here’s another unique case we’ll be covering in our EDRM April case law webinar, involving a unique protective order. And if you’re wondering where I went to school, you’re not wondering anymore! 😉

In Husley v. Bailey, et al., No. 3:20-cv-00167 (JBA) (D. Conn. Feb. 24, 2021), Connecticut Magistrate Judge Thomas O. Farrish granted the defendants’ motion to compel the plaintiff to comply with requests for production and also granted in part and denied in part their request for attorneys’ fees, rejecting the plaintiff’s objection for a more restrictive protective order that included an “attorney’s eyes only” designation.

Case Background

In this case where a court reporting firm alleged its former employee entered into non-competition, non-interference, non-solicitation and non-disclosure agreements that survived the termination of his employment (when he went to work for a competitor), Senior United States District Judge Janet Bond Arterton was assigned to the case and issued her standard electronic filing order and protective order.  In contrast to the standard form of protective order used by other judges in the district, Judge Arterton’s form did not include a provision permitting parties to designate documents as “Confidential – Attorneys’ Eyes Only”, except in an unusual circumstance.  To seek additional protection, her order stated:

“Parties and counsel are advised that their claimed need for a more restrictive protective order does not relieve them from compliance with discovery requests in a timely fashion. It is counsel’s responsibility to timely move for further protection based on confidentiality, if needed. If the Court has not ruled on any such motion when discovery is due, then the documents shall be produced by the deadline for “attorneys’ eyes” only, pending decision by the Court. If exceptional circumstances exist in which production in this form would be irreparably prejudicial, counsel shall immediately advise the Court by letter.”

After obtaining an extension of time, the plaintiff responded to the defendants’ requests on November 2, 2020, agreeing to produce all documents responsive to seven of the requests, but objecting to the other fifty-one requests with general objections, but also objected that the information should be subject to an “attorney’s eyes only” protective order, indicating its intent to confer with defendants’ counsel for a more restrictive protective order.  The defendants were willing to consider such an order if the plaintiff produced documents in the meantime, but the plaintiff produced only a partial production with an “attorney’s eyes only” designation, leading defendants to drop consideration of the more restrictive protective order and (eventually) filing the motion to compel.

Judge’s Ruling

Judge Farrish, noting that the plaintiff “does not argue that that the documents are irrelevant, or that the defendants’ requests are unduly burdensome or disproportionate in the Rule 26(b)(1) sense”, stated: “With questions of relevance, burden and proportionality thus off the table, the defendants’ motion presents only two questions: (1) whether Huseby may refuse to produce responsive documents on the ground that its preferred form of protective order is not in place, and (2) if not, whether it should pay the attorneys’ fees and costs that the defendants incurred in making their motion.”

Continuing, Judge Farrish stated: “The first question is easily answered, and indeed Judge Arterton anticipated and answered it at the very beginning of the case. Her protective order states – in bold type, no less – that “[p]arties and counsel are advised that their claimed need for a more restrictive order does not relieve them from compliance with discovery requests in a timely fashion.”…If Huseby thought that the existing order was insufficiently protective of its trade secrets and other confidential information, it could not have been unclear about what it needed to do; the order clearly stated – again, in bold type – that “[i]t is counsel’s responsibility to timely move for further protection based on confidentiality.”…Moreover, the order was equally clear that if the Rule 34(b)(2)(A) production deadline arrived before a motion for further protection was ruled upon, the remedy would not be to withhold production; in that situation, all responsive documents were to be ‘produced by the deadline for ‘attorneys’ eyes’ only, pending decision by the Court.’ In short, Judge Arterton made it abundantly clear that the absence of a stronger protective order would not be a defense to production. And since that is the only defense that Huseby has asserted, the defendants’ motion to compel is GRANTED.”

As for the defendants’ fees request, Judge Farrish “conclude[d] that Huseby should not be ordered to pay those fees and costs that the defendants incurred between August 24, 2020 and January 12, 2021, but should be ordered to pay fees and costs incurred after January 12, 2021”, finding that “once the defendants filed their motion on January 12, 2021, Huseby’s non-compliance took on a different cast.”

So, what do you think?  Do you find it odd for a protective order form to not include an “attorney’s eyes only” designation option?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

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