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Donahue v. Smith

United States District Court, E.D. Louisiana

December 26, 2017

RANDY SMITH, ET AL., Defendants

         SECTION: “E” (2)



         Before the Court is Plaintiff Sarah Barnett Donahue's objection to the U.S Magistrate Judge's order denying her motion to remove an expert report's confidential designation.[1] The motion is opposed.[2] For the reasons that follow, Plaintiff's objection is sustained.


         Plaintiff initially filed suit on November 18, 2015, bringing federal and state law claims against her ex-husband, Brandon Donahue; Sheriff Rodney J. Strain, Jr.; and Sergeants Michael Ripoll, Jr., Alex Dantagnan, Jr., and Steven Gaudet (collectively “Defendants”).[3] During the pendency of the case, Plaintiff filed a motion for a protective order pertaining to her medical records, which the U.S. Magistrate Judge granted on July 13, 2017 (the “Protective Order”).[4] The Protective Order reads in pertinent part:

1. Each party shall have the right to designate as “Confidential” and subject to this Agreement documents and other materials that may be accorded confidential protection. All information and documents which any party to the captioned litigation designates as “Confidential” shall be used by all other parties solely for the purposes of the captioned litigation. “The captioned litigation” includes any appeal from an order of judgment in the captioned litigation.
2. Any document or thing may be designated as Confidential by any party . . . .
8. A party shall not be obligated to challenge the propriety of a Confidential designation at the time made, and failure to do so shall not preclude a subsequent challenge thereto. In the event that any party to the captioned litigation disagrees at any stage of these proceedings with the designation by the designated party of any document or information as Confidential, the Parties shall try first to resolve such dispute in good faith on an informal basis. If the dispute cannot be resolved, the objecting party may seek appropriate relief from the Court. The Parties may by stipulation provide for exceptions to this Agreement and any party may seek an order of the court modifying this Agreement. This Agreement shall be without prejudice to the right of any party to bring before the Court at any time the question of whether any particular information or document should, or should not, in fact be accorded Confidential status.
10. Unless the court orders or the Parties hereto agree in writing otherwise, within thirty (30) calendar days after the conclusion of the captioned litigation, all originals and reproductions of any documents or materials which have been designated and remained Confidential pursuant to this Agreement, including, without limitation, any notes, summaries, or other transcripts made therefrom, shall be returned to the producing party, unless such copies have been destroyed and the destruction thereof has been certified in writing by counsel for the party previously in possession of such Confidential information. . . . Insofar as this Agreement restricts the communication and use of Confidential documents or information, the Agreement shall continue to be binding after the conclusion of the captioned litigation, except that a party may seek the written permission of the designating party with respect to dissolution or modification of this Agreement, or any provision thereof.[5]

         During discovery, Defendants hired F. Charles Frey, IV, Ph.D. to conduct a psychological independent medical evaluation (“IME”) of Plaintiff.[6] On June 27, 2017, Dr. Frye examined Plaintiff, conducted a series of tests, and prepared an expert report, which included both his diagnosis and recommendations for Plaintiff's future care.[7] Defendant Brandon Donahue designated Dr. Frye's report as confidential pursuant to the Protective Order.[8]

         On September 12, 2017, this Court granted judgment in favor of Defendants.[9] On October 1, 2017, Plaintiff filed a notice of appeal.[10] That appeal is currently pending before the Fifth Circuit.[11]

         On September 19, 2017, Plaintiff filed the instant motion to remove the confidential designation of Dr. Frey's expert report.[12] The motion was referred to the U.S. Magistrate Judge.[13] On September 22, 2017, the magistrate judge denied Plaintiff's motion because (1) “the report itself states that it has no bearing on custody, ” (2) “[D]efendant paid for the report as part of an independent medical evaluation of [P]laintiff, ” and (3) “[P]laintiff has the right to return to [Dr.] Frey herself to receive her own report not associated with this litigation.”[14] Additionally, the magistrate judge, citing paragraph 10 of the Protective Order, held that “[b]ecause . . . [P]laintiff ultimately seeks a modification of the protective order post-litigation and because [P]laintiff needs the written permission of the designating party-and not a court order-and that party denied permission, this clause[, paragraph 10, ] forecloses this motion.”[15]

         Plaintiff timely filed this objection.[16]


         A magistrate judge's non-dispositive order may be set aside only if it “is clearly erroneous or is contrary to law.”[17] This Court reviews the magistrate judge's “factual findings under a clearly erroneous standard, ” while “legal conclusions are reviewed de novo.”[18]

         Under Federal Rule of Civil Procedure 26(c), “[a] party or any person from whom discovery is sought may move for a protective order in the court where the action is pending, ” and the court “may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.”[19] “As a general proposition, a district court [may] exercise its sound discretion in determining how far to restrict discovery; and, in particular, the decision whether to grant or deny a request for a protective order is entrusted to the district court's sound discretion.”[20]Protective orders are characterized as “flexible devices, ”[21] and are “designed to shape the changing needs of the litigation and subject to continued modification.”[22] Thus, “[p]arties may seek modification of a protective order to gain access to previously deemed confidential materials.”[23]

         “There are essentially three types of protective orders in terms of the amount of information covered. The narrowest is a protective order covering specific, identified information.”[24] Before a court issues a “narrow” order of protection, it first reviews the material to be designated confidential before issuing the order, so it is clear in that case that “good cause” for the order exists.[25] On the other end of the protective order spectrum is the so-called “umbrella” protective order, which predesignates all discovery as protected, [26] and does not require a specific showing of good faith.[27] In this case, the Court imposed a “blanket” protective order, which permits either party to deem confidential any documents he or she believes in good faith contain confidential information.[28]

         Plaintiff argues the magistrate judge's order is “contrary to law, as it is based on a misinterpretation of the Protective Order, and bolstered by a clearly erroneous factual finding.”[29] First, Plaintiff contends the magistrate judge's order misinterprets the terms of the Protective Order. Plaintiff submits that because litigation in this matter is on-going, paragraph 10 of the Protective Order, which requires any modifications to the order sought “after the conclusion of the captioned litigation” be agreed to in writing by the designating party, is inapplicable to her motion. Rather, she avers paragraph 8, which applies to modifications sought “at any stage of these proceedings, ” applies to her motion, as this case is still pending before the Fifth Circuit. In support of her contention, Plaintiff points to paragraph 1 of the Protective Order, which defines “[t]he captioned litigation” as including “any appeal from an order of judgment in the captioned litigation.” Second, Plaintiff argues she was not seeking removal of the confidential designation solely for its use in a state court custody proceeding; she also seeks removal because of her “strong interest in her own psychological health” and her interest in “shar[ing] with her regular therapist the results of the broad, expansive, and time-consuming testing” she believes “could assist her therapy.”[30] Finally, Plaintiff contends she is the “only person outside this litigation with any legitimate interest in controlling access to any evaluation of her psychological health.”[31]

         The Court finds the magistrate judge's determination that paragraph 10 applies to Plaintiff's motion is clearly erroneous. Paragraph 10 applies to modifications sought post-litigation. Paragraph 8, however, applies to modifications sought during the pendency of the litigation, which by the express terms of the Protective Order, includes appeals. As this case is currently on appeal before the Fifth Circuit, paragraph 8, not paragraph 10, applies to Plaintiff's motion. Under paragraph 8, “the Parties shall try first to resolve such dispute in good faith on an informal basis. If the dispute cannot be resolved, the objecting party may seek appropriate relief from the Court.” As Defendant does not consent to the removal of Dr. Frey's expert report's confidential designation, Plaintiff properly now seeks “appropriate relief from the Court.”

         In reviewing a challenge to the confidential designation assigned to a document pursuant to a blanket protective order “designed to protect matters of private, as opposed to public, interest, ” courts in this Circuit apply a four-part test.[32] These factors include:

(1) good cause-if good cause was shown for the original protective order, the burden is on the party seeking modification to show good cause for modification; if good cause was not shown for the original protective order, the burden of showing good cause is on the party seeking continued confidentiality protection;
(2) the nature of the protective order (i.e., narrow vs. broad, court imposed vs. court approved upon ...

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