United States District Court, Southern District of Alabama, Southern Division
CORE LABORATORIES LP f/k/a/ Core Laboratories, Inc., et al. Plaintiff,
AMSPEC, et al., Defendants.
V. S. GRANADE, SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiffs' objection (Doc.
156) in accordance with Federal Rule of Civil Procedure 72(a)
to the Magistrate Judge's order of July 12, 2017 (Doc.
151), Defendants' response thereto (Doc. 158), and
Plaintiffs' reply (Doc. 159). For the reasons explained
below, the Court finds that Plaintiffs' objections should
be overruled and that the Magistrate Judge's order should
object to the Magistrate Judge's order, dated July 12,
2017, which addressed Plaintiffs' motion to clarify the
Magistrate's prior ruling regarding the confidentiality
requirements of Plaintiffs' expert reports. The prior
order, dated June 16, 2017, granted Defendants' request
to compel Plaintiffs to produce all documents reviewed by
their experts and compelled the Plaintiffs to remove
“Attorneys' Eyes Only” (AEO) designations
from their expert reports. The Magistrate Judge included the
As required by the Court's Order Protecting
Confidentiality, counsel for the Defendants have convinced
the undersigned that such designation prejudices their
ability to adequately consult with their clients, especially
in the case of the Compton expert report, which has been
entirely designated AEO.
* * * *
The Plaintiffs are the parties who have put trade secrets and
otherwise sensitive financial information at issue through
the claims in their complaint (Doc. 1). Having done so, they
may not then prejudice the Defendants' ability to defend
against those claims by insisting that the Defendants not be
able to examine and consult with their counsel about such key
evidence that is being presented against them.
(Doc. 138 pp. 5-6). Plaintiffs moved for clarification of the
June 16 order requesting that they be allowed to produce
laptop images and other data its experts relied upon to
Defendants on an AEO basis. (Doc. 144). The Magistrate Judge
ruled that the material, including the “ ‘working
copies' of the forensic images[, ]' must be produced
without an ‘Attorneys'
Eyes Only' designation.” (Doc. 151, p. 2, emphasis
in original). Plaintiffs object to the clarification order on
the basis that the underlying facts and data that support
their expert reports contain proprietary information and
Plaintiffs maintain serious concerns over allowing Defendants
to view such sensitive data.
72(a) of the Federal Rules of Civil Procedure permits a
district court to refer any non-dispositive pretrial matter
to a magistrate judge for disposition. A party may object to
a magistrate judge's order on a non-dispositive pre-trial
matter within fourteen days after service of the order.
Fed.R.Civ.P. 72(a). Upon a party's objection to any
non-dispositive matter assigned to the Magistrate Judge, the
district court “must consider timely objections and
modify or set aside any portion of the order that is clearly
erroneous or is contrary to law.” Fed.R.Civ.P. 72(a);
Accord, San Shiah Enterprise Co., Ltd. v. Pride Shipping
Corp., 783 F.Supp. 1334, 1335 (S.D. Ala. 1992); see
also 28 U.S.C. § 636(b)(1)(A) ("A judge of the
court may reconsider any pretrial matter under this
subparagraph (A) where it has been shown that the magistrate
judge's order is clearly erroneous or contrary to
law.”). “A finding is ‘clearly
erroneous' when although there is evidence to support it,
the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.” United States v. United States Gypsum
Co., 333 U.S. 364, 395 (1948). “An order is
contrary to law ‘when it fails to apply or misapplies
relevant statutes, case law or rules of procedure.'
” S.E.C. v. Kramer, 778 F.Supp.2d 1320,
1326-27 (M.D. Fla. 2011) (quoting Tompkins v. R.J.
Reynolds Tobacco Co., 92 F.Supp.2d 70, 74
(N.D.N.Y.2000)). The “clearly erroneous or contrary to
law” standard of review is “extremely
deferential.” Pigott v. Sanibel Dev., LLC,
2008 WL 2937804, at *5 (S.D. Ala. July 23, 2008) (citations
omitted). This standard is considered a “very difficult
one to meet.” Thornton v. Mercantile Stores,
180 F.R.D. 437, 439 (M.D. Ala. 1998) (citing Tai-Pan Inc.
v. Keith Marine, Inc., 1997 WL 714898, *11 (M.D. Fla.
1997)). The Magistrate Judge's orders “should not
be disturbed absent a clear abuse of discretion that leaves
the reviewing court with ‘the definite and firm
conviction that a mistake has been committed.'”
Rowlin v. Alabama Dept. of Public Safety, 200 F.R.D.
459, 460 (M.D. Ala. 2001)(citations omitted).
contend that they should not be compelled to produce the
material unless it is designated AEO because discovery has
revealed that Defendants want to shut down Plaintiffs by
taking their Chevron business. Plaintiffs quote statements in
Defendants' emails that state they “will take a
large amount (if not all) of Saybolts work at Chevron”
and [w]e could basically shut Saybolt down.” (Doc.
156-3, p. 2). Plaintiffs cite an Eleventh Circuit case to
show that “in complicated cases where
document-by-document review of discovery materials would be
unfeasible, an ‘umbrella' protective order,
… should be used to protect documents designated in
good faith by the producing party as confidential.”
In re Alexander Grant & Co. Litig., 820 F.2d 352
(11th Cir. 1987) (citation omitted). However, the Court notes
that the protective order in In re Alexander made
the material designated as confidential available to the
parties for use in litigation, it was merely inaccessible to
non-parties. Id. at 354. A protective order is in
place in this case that would prohibit the disclosure of
confidential information (Doc. 132), but Plaintiffs seek to
prohibit even the Defendants from viewing documents
Plaintiffs' experts relied upon.
are correct that designating confidential documents as for
“Attorneys' Eyes Only” has been used in other
cases for certain confidential information. The Second
Circuit explained the rational for designating documents as
AEO as follows:
The disclosure of confidential information on an
“attorneys' eyes only” basis is a routine
feature of civil litigation involving trade secrets. See
Fed.R.Civ.P. 26(c)(1)(G) (“The court may, for good
cause, issue an order to protect a party or person requiring
that a trade secret or other confidential research,
development, or commercial information not be revealed or be
revealed only in a specified way ....”). The purpose of
this form of limited disclosure is to prevent a party from
viewing the sensitive information while nevertheless allowing
the party's lawyers to litigate on the basis of that
In re The City of New York, 607 F.3d 923, 935-36 (2d
Cir. 2010) (footnote omitted). But the fact that an AEO
designation may sometimes be appropriate does not mean it
must be used in all cases involving sensitive or confidential
information. “The burden is on the movant to show the
necessity of the protective order, and the movant must meet
this burden with a ‘particular and specific
demonstration of fact as distinguished from stereotyped and
conclusory statements.' ” Ekokotu v. Fed. Exp.
Corp., 408 F.App'x 331, 336 (11th Cir. 2011)
(quoting United States v. Garrett, 571 F.2d 1323,
1326 n. 3 (5th Cir.1978)). Thus, it is Plaintiffs' burden
to show by specific facts that the designation is necessary.
The Court must both find there is “good cause”