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T.W. Vending, Inc. v. Cod Food Services

United States District Court, W.D. Wisconsin

April 13, 2018

COD FOOD SERVICES, et al. Defendants.



         Before the court are three different discovery disputes and the parties' proposed stipulation to extend the schedule, which the court will address in order:

         I. Re-designating Confidential Documents (dkt. 14)

         As part 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.

         In 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.

         Although 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.

         Therefore, 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 disproportionate.” Http://en.oxforddictionaries .com/definition/undue. 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.

         Given 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.

         Before 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 protection.

         II. Defendant Bishop's Proposed Deposition Errata

         On 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).

         Plaintiffs 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 his ...

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