United States District Court, W.D. Wisconsin
T.W. VENDING, INC. and THREE SQUARE MARKET, INC., Plaintiffs,
COD FOOD SERVICES, et al. Defendants.
STEPHEN L. CROCKER, MAGISTRATE JUDGE.
the court are three different discovery disputes and the
parties' proposed stipulation to extend the schedule,
which the court will address in order:
Re-designating Confidential Documents (dkt. 14)
of their November 6, 2017 motion to compel (dkt. 14),
plaintiffs asked the court to order defendants to downgrade
specified documents (dkt. 18-17) from “Attorney's
Eyes Only” (AEO) to “Confidential.”
Plaintiffs argued that defendants had overused and misused
the designation, which hampered plaintiffs' ability to
develop their evidence. In their written response, defendants
conceded nothing, claiming that they had limited their use of
the AEO designation to their most sensitive business
documents, and that the percentage of documents they marked
AEO was both relatively small and proportional to the
percentage of AEO documents marked by plaintiffs. Dkt. 23. At
the November 15, 2017 telephonic motion hearing, the parties
agreed that they could honor the existing AEO designations
while taking their upcoming depositions, but they still
needed the court to review the disputed documents to
determine whether any of them should be dropped to simple
“confidential, ” which would give the parties
themselves access to the information. See hearing
transcript, dkt. 56 at 20.
their protective order, the parties use the
“confidential” level of protection to protect
information within the scope of F.R. Civ. Pro. 26[c]. The
parties then provided that:
A party may designate especially sensitive Confidential
documents or portions of documents as “Confidential-
Attorneys' Eyes Only” where disclosure of the
document or portion of the document to the opposing party is
likely to cause undue harm to the producing party or to the
legitimate interests of a non-party.
Dkt. 13 at ¶ 5.
this court has a duty to the public to scrutinize first level
protection, namely the parties's definition of
“confidential” information, see Jepson, Inc.
v. Makita Elec. Works, Ltd., 30 F.3d 854, 859
(7th Cir. 1994), once this is done, the parties
are free to impose whatever additional levels of protection
they wish on any subset of information that objectively
qualifies as confidential. In other words, the parties'
definition of AEO level protection governs the court's
review of the disputed documents in dkt. 18-17. The
parties' protective order further provides that a party
asserting that material qualifies for AEO protection
“shall also have the burden of proving that there are
not feasible, less restrictive means of providing the
necessary protection.” Dkt. 13 at ¶ 12.
pursuant to ¶ 12, defendants have the burden of proving
that AEO-level protection of a document is necessary to
prevent undue harm to them or to the legitimate interests of
a non-party. Absent a definition of the term “undue
harm” in the protective order, I will default to a
dictionary definition: “undue” means
“unwarranted or inappropriate because excessive or
Defendants' responded to plaintiffs' AEO challenge in
their Combined Memorandum:
The documents that Defendants have marked as AEO contain
sensitive and secret information regarding Defendants'
financial information, marketing strategy, pricing
information, technical information, and customer information.
. . . Plaintiffs do not suffer any particular prejudice or
hardship by being required to view such documents only
through counsel. . . .
Sterling Services had a strained and challenging business
relationship with Plaintiffs due to the multiplicity problems
[sic] plaguing Plaintiffs' kiosk software. And
Plaintiffs are competitors of Digital Checkouts in the
marketplace. Defendants should not be forced to turn over
wholesale their sensitive information to Plaintiffs. An AEO
designation, as stipulated by the parties' joint
protective order, is an appropriate safeguard and should
remain in place.
Dkt. 23 at 21.
that it is defendants' burden to establish,
document-by-document, that each of these documents is
entitled to AEO protection, this is argument is so vague as
to be useless. I have read and reviewed each document filed
at dkt. 18-17, and for most of them, I cannot discern any
reason to conclude that allowing plaintiffs to see them would
cause any actual harm to defendants, let alone harm
that is “disproportionate” or
“excessive.” Most of the documents do not contain
any sensitive financial or business information and they do
not reveal any facts, circumstances or situations that would
qualify for anything exceeding garden variety
confidentiality. The bottom line: defendants have not
established that any of the withheld documents
qualify for AEO status. Accordingly, I intend to strip all of
these documents of AEO protection.
I do, I will give defendants one more opportunity actually to
meet their burden on a subset of documents that arguably
could qualify for AEO protection. This will require
defendants to provide specific, objective information about
each of these documents (from dkt. 18-17, listed by Bates
Number): 1441, 1475, 1611, 1653-58, 1661-70, 1672-78,
1690-1704, 1705-21 and 1728. Defendant may have until April
23, 2018 to submit ex parte a specific explanation as to why
each of these documents actually qualifies for AEO
Defendant Bishop's Proposed Deposition Errata
November 17, 2017, defendant Jim Bishop sat for a day-long
deposition. See transcript, dkt. 40-4. On January 3,
2018, Bishop, by counsel, submitted a three page errata sheet
offering 17 changes to his testimony, most on the ground that
the proposed change was a “more accurate description of
the events.” See dkt. 40-5. This led to
plaintiffs' motion to strike the errata (dkts. 38 -40),
which defendants oppose (dkt. 47).
characterize Bishop's changes as blatant contradictions
of his deposition testimony that cannot plausibly be seen as
correcting an error or clarifying confusing testimony.
Rather, assert plaintiffs, “The errata sheet changes
contort every piece of testimony Bishop advanced regarding