LOBSTER 207 LLC v. PETTEGROW et al

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
LOBSTER 207, LLC, )
)
Plaintiff )
)
v. ) 1:19-cv-00552-LEW
)
WARREN B. PETTEGROW, et al., )
)
Defendants )
ORDER ON MOTION FOR PARTIAL RECISSSION AND
ON MOTION TO RETAIN DESIGNATION
Defendants Anthony D. Pettegrow, Josette G. Pettegrow, Trenton Bridge Lobster
Pound, Inc., Warren B. Pettegrow, and Poseidon Charters, Inc. (Defendants) move
pursuant to Federal Rule of Civil Procedure 60(b) to “rescind” the provision in the Court’s
Order on Motion for Reconsideration (Reconsideration Order, ECF No. 235) permitting
Plaintiff to redact certain information from its responses to discovery requests. (Motion
for Partial Recission, ECF No. 303.) Plaintiff filed with its opposition to Defendants’
motion a cross-motion to retain the “attorneys eyes only” designation on certain financial
information produced by Plaintiff. (Motion to Retain Designation, ECF No. 309.)
Following a review of the relevant portions of the record, and after consideration of
the parties’ arguments, the Court grants Defendants’ motion to rescind and denies
Plaintiff’s motion to retain designation.
BACKGROUND
In its March 24, 2021, Order on Discovery Issues (Discovery Order, ECF No. 176),
the Court noted that, “[a]ccording to Plaintiff, after Plaintiff learned of the alleged
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misrepresentation [by Defendants regarding the price paid for lobsters], it adjusted the
amount it paid for lobsters and now is more profitable.” (Discovery Order at 1.) The Court
therefore found “Plaintiff’s pricing and profitability are relevant to Plaintiff’s contention
that some of the defendants misrepresented the price they paid for lobsters,” and “whether
Plaintiff’s pricing and its margins are comparable to the prices represented by the
defendants is information that is probative of Plaintiff’s misrepresentation and damages
claims.” (Id. at 1-2.) The Court, therefore, ordered Plaintiff to produce “pricing records,
purchasing records, and federal/state landings (SAFIS or Trip Ticket)” through the date of
the Discovery Order. (Id. at 2.)
Plaintiff produced pricing and purchasing records but redacted the names and
license numbers of individual fishermen from whom it had purchased lobsters. Defendants
then asked the Court to order Plaintiff disclose the identities of the fishermen. The Court
ultimately concluded it was “not convinced the redacted information (i.e., the names and
license numbers of the fisherman) is probative of the claims or defenses,” and held that
Plaintiff was not required to provide that information. (Reconsideration Order at 4.)
Earlier, Defendants had issued a subpoena to third party Black Pearl Seafood, LLC
(Black Pearl), a company that acted as a middleperson between Plaintiff and the individual
fishermen; the records produced by Black Pearl included pricing information with the
names of the fishermen with whom it interacted. (Motion at 3.) Black Pearl’s records also
included information regarding additional payments by Plaintiff to certain vendors for
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lobster, per pound.1 (Id.) Defendants also issued multiple subpoenas to individual
fishermen. The records produced by the fishermen included information regarding
payments they received from Plaintiff. (Id. at 4-5.)
On January 25, 2022, in a supplement to their Initial Disclosures, Plaintiff disclosed
the names of 14 additional individual fishermen as potential witnesses with knowledge of
lobster pricing during Defendant Warren Pettegrow’s tenure as Plaintiff’s CEO. On
February 24, 2022, Plaintiff produced two spreadsheets documenting additional payments
Plaintiff made to lobster vendors for lobsters, which vendors included individual fishermen
whose names were redacted. (Id. at 5.) Plaintiff produced another spreadsheet on April 4,
2022, which showed additional payments to individuals whose names were redacted. (Id.)
With the information derived from the documents and other sources, including deposition
testimony, Defendants have been able to connect some purchasing and pricing records to
some individual fishermen. (See, e.g., Defendants’ Reply in Support of Partial Recission
at 1-5; Defendants’ Opposition to Motion to Retain Designation at 7-8, ECF No. 318-1.)
In its Reconsideration Order, with the understanding that the parties had previously
used an “attorneys eyes only” designation in discovery, (see Plaintiff’s Response to
Request for Reconsideration at 4, ECF No. 223), the Court permitted the parties to
designate responses to discovery as “attorneys eyes only,” and established a procedure for
a party to object to another party’s designation. (Reconsideration Order at 3-4.) Plaintiff
1 Plaintiff asserts the additional payments for the lobsters were for “value-added services” the fishermen
and other vendors provided, such as trucking and grading. (Plaintiff’s Opposition to Motion for Partial
Recission at 3-4, ECF No. 304.) Defendant disputes this characterization of the payments. (Defendants’
Reply in Support of Partial Recission at 1-5, ECF No. 312-1.)
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placed the designation on certain of its financial records, primarily related to pricing,
generated after Defendant Warren Pettegrow’s employment ended. Following the ordered
procedure, Defendants objected to the designations on May 31, 2022. (See Attachment A
to Plaintiff’s Opposition to Motion for Partial Recission, ECF No. 304-1.) Plaintiff moves
to maintain the designations at least until the Court reaches decision on the parties’
anticipated cross-motions for summary judgment. (Plaintiff’s Motion to Retain
Designation at 8-9, ECF No. 309.)
DISCUSSION
A. Identities of Individual Fishermen
Defendants bring their motion to “rescind” part of the Court’s Reconsideration
Order pursuant to Federal Rule of Civil Procedure 60(b). “It is … well settled that Rule
60 applies only to final judgments,” however. Farr Man & Co., Inc. v. M/V Rozita, 903
F.2d 871, 874 (1st Cir. 1990). The Advisory Committee Note to the 1946 amendment of
Rule 60(b) underscores the finality requirement of Rule 60:
The addition of the qualifying word “final” emphasizes the character of the
judgments, orders or proceedings from which Rule 60(b) affords relief; and
hence interlocutory judgments are not brought within the restrictions of the
rule, but rather they are left subject to the complete power of the court
rendering them to afford such relief from them as justice requires.
Fed. R. Civ. P. 60(b), Advisory Committee’s Note.
The Reconsideration Order is not a final order as contemplated by Rule 60. The
Reconsideration Order, “[a]s an interlocutory order,” however, is “subject to the district
court’s discretionary power to alter it at any time prior to the entry of [a] final decree.”
Farr Man, 903 F.2d at 875; see also Nieves-Luciano v. Hernández-Torres, 397 F.3d 1, 4
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(1st Cir. 2005) (“Interlocutory orders … ‘remain open to trial court reconsideration’ until
the entry of judgment.”) (citation omitted); Papkee v. MECAP, LLC, No. 2:20-cv-00006-
DBH, 2021 WL 1164770, at *4 n.5 (D. Me. Mar. 26, 2021) (aff’d, Apr. 13, 2021) (same,
citing Farr Man); Int’l Ass’n of Machinists & Aerospace Workers v. Verso Corp., 121 F.
Supp. 3d 201, 217-18 (D. Me. 2015) (a party is entitled to reconsideration of a prior order
where the party demonstrates “the availability of new evidence not previously available.”).
Consistent with this principle, District of Maine Local Rule 7(f) allows a party to ask the
Court to reconsider an order beyond the fourteen-day filing period for such motions if the
motion is based on “newly available material evidence.” D. Me. Loc. R. 7(f).
Defendants contend that Plaintiff paid some vendors, including individual
fishermen, more than it paid other vendors and that the purchase data contradicts Plaintiff’s
allegations that it paid more for lobsters while Defendant Warren Pettegrow was CEO of
Plaintiff than after he left the company, and more than Plaintiff paid Defendant Trenton
Bridge Lobster Pound, Inc. for lobsters. The Court previously rejected Defendants’
argument that the fishermen’s identities were relevant to whether Plaintiff paid more for
its lobsters as alleged.2 The Court remains unconvinced that the identities are relevant to
2 Defendants initially suggest (Motion for Partial Recission at 3-4, 9) and later assert (Id. at 10) that the
Court “erred” when it issued its Reconsideration Order without allowing Defendants to file a motion to
compel. Exercising its discretionary authority, the Court denied Defendants’ request for leave to file a
motion to compel, but the Court addressed in the Reconsideration Order issues related to Defendants’
requested motion. If Defendants believed the Court erred in its order, the manner and time for Defendants
to assert the error were through an objection filed in accordance with Federal Rule of Civil Procedure 72
or a timely motion pursuant to Local Rule 7(f). The Court did not consider Defendants’ claim of error made
at this stage of the proceedings.
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a basic assessment of what Plaintiff paid for lobsters. The pricing and purchasing data,
which the Court required Plaintiff to produce, are relevant to that issue.
Subsequent to the Court’s Reconsideration Order, however, Plaintiff identified
multiple fishermen as individuals who could have information Plaintiff “will use to support
its claims or defenses.” (Supplemental Initial Disclosures, PageID #: 6137, ECF No. 303-
2.) Given the number of fishermen identified as potential witnesses and the information
attributed to the fishermen, it is apparent Plaintiff could call individual fishermen to testify
as to the price of lobsters, including the amount Plaintiff paid for the lobsters during
Defendant Warren Pettegrow’s employment with Plaintiff. The amount paid by Plaintiff
to each fisherman is relevant to the foundation for such testimony, the interests of each
fisherman who might testify, and the nature of each fishermen’s relationship with Plaintiff.
Furthermore, because Plaintiff evidently intends to call as witnesses certain fishermen to
testify as to the fishermen’s experience with Plaintiff, Defendants are entitled to explore
whether other fishermen had the same or different experiences with Plaintiff. Plaintiff’s
supplemental disclosure constitutes newly available information to support a modification
of the Court’s order. The Court will amend the Reconsideration Order to require Plaintiff
to provide the names of the fishermen on the records it has produced to Defendants.
B. Attorneys’ Eyes Only Designation
Plaintiff designated certain pricing and associated records produced in discovery as
“attorneys eyes only.” Defendants’ counsel argues that the assistance of Defendants and
their bookkeeper is necessary to “consolidate[e] and summariz[e]” the data produced by
Plaintiff in preparation for trial and for presentation to the jury. (Defendants’ Opposition
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to Motion to Retain Designation at 9-10.) Plaintiff moves to retain the designation, citing
in part the need to prevent Defendants from using the pricing information to “undercut”
Plaintiff’s prices with its existing docks and wholesalers. (Plaintiff’s Motion to Retain
Designation at 10.)
“Attorneys’ eyes only disclosure is appropriate only in limited circumstances, such
as cases involving trade secrets, because it hinders the plaintiff’s ability to aid counsel in
the review of the evidence and to determine her strategy in light of it.” Theidon v. Harvard
University, 314 F.R.D. 333, 336 (D. Mass. 2016). Whether to maintain the designation
requires the balancing of a party’s need for the information to assist in the development
and implementation of case strategy against the need to protect proprietary information to
which an opposing party would not have access without the litigation.
Here, Defendants have demonstrated a legitimate need to disclose the information
in preparation for and at trial. Counsel understandably seek the benefit of Defendants’
history and experience in the lobster business in the assessment of the pricing data and
other relevant financial information produced in discovery in a case in which Plaintiff seeks
to recover substantial monetary damages. The price paid for lobsters after Defendant
Warren Pettegrow’s separation from the company is relevant to an assessment of how, if
at all, Plaintiff’s pricing practices differ without Defendant Warren Pettegrow serving as
CEO. In addition, to the extent Plaintiff argued that disclosure of the information might
undermine Plaintiff’s price negotiations for the upcoming season, the prices for the current
season have presumably been established at this point. Plaintiff’s proprietary interest,
therefore, is likely less now than when it made the designation.
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Plaintiff argues that if the Court is inclined to remove the designation, the Court
should defer removal until after the Court rules on the parties’ anticipated motions for
summary judgment. Some of the information, however, appears to be relevant to the
summary judgment process. For instance, in its memorandum outlining the bases of its
anticipated motion for summary judgment, Plaintiff represents that it intends to move for
summary judgment on two counterclaims based on an arbitration decision on Defendant
Warren Pettegrow’s employment-related claim. (Defendants’ Pre-Filing Conference
Memorandum at 2-3, ECF No. 317.) Defendants have attempted to distinguish and limit
the significance of the decision in part because the arbitrator did not have the pricing data
after Defendant Warren Pettegrow was terminated as Plaintiff’s CEO. (See e.g., Response
to Motion to Retain Designation at 2, ECF No. 318.) Defendants will presumably seek to
use some of the post-termination pricing data to attempt to demonstrate that, contrary to
Plaintiff’s argument, the arbitration decision should not estop Defendants from litigating
certain issues in this case. Because the information could be material to some of the
summary judgment issues, Defendants’ counsel should have the ability to discuss the
information with Defendants and their bookkeeper in connection with the summary
judgment process as well as trial.
In sum, given that the information is relevant, that Plaintiff’s proprietary interest is
evidently less now than when the designation was made, that Defendants (and their
bookkeeper) have expertise that could assist counsel, and that the information is likely
relevant to the summary judgment and trial processes, the Court concludes that removal of
the designation at this stage of the proceedings is appropriate.
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CONCLUSION
Based on the foregoing analysis, the Court grants Defendants’ Motion for Partial
Recission. Within seven days of the date of this order, Plaintiff shall disclose the identities
of the fishermen referenced in the documents produced by Plaintiff. The Court also denies
Plaintiff’s Motion to Retain Designation. The “attorneys’ eyes only” designation shall be
removed from the documents that are the subject of the motion. The documents shall be
deemed confidential under the terms of the Confidentiality Order.
NOTICE
Any objections to the Order shall be filed in accordance with Federal
Rule of Civil Procedure 72.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 4th day of August, 2022.
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