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 TO RETAIN CONFIDENTIAL DESIGNATION
Pursuant to the Confidentiality Order in this case (Order, ECF No. 132), Plaintiff
designated certain documents as “confidential.” Following Defendants’ objection to
Plaintiff’s confidential designation of recordings of phone conversations between
Plaintiff’s then-marketing director and various individuals during a seven-month period
prior to the filing of this lawsuit (the documents), Plaintiff moves to retain the confidential
designation. (Motion, ECF No. 197.) Defendants oppose the motion. (Opposition, ECF
No. 210.)
After a review of the relevant portions of the record, and after consideration of the
parties’ arguments, the Court denies Plaintiff’s motion without prejudice and orders further
proceedings regarding the documents.
DISCUSSION
The party seeking to maintain its confidentiality designation “has the burden to
show good cause” for the designation. Order ¶ 9(c); Sea Hunters, LP v. S.S. Port
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Nicholson, No. 2:08-cv-272-GZS, 2014 WL 2117358 (D. Me., May 21, 2014). “A finding
of good cause must be based on a particular factual demonstration of potential harm, not
on conclusory statements.” Anderson v. Cryovac, Inc., 805 F.2d 1, 7 (1st Cir. 1986). “The
showing of good cause for the confidentiality designation ‘should be made with appropriate
specifics.’” Ouellette v. Gaudette, No. 2:16-cv-53-DBH, 2016 WL 7263044, at *2 (D. Me.
Dec. 14, 2016) (quoting 8A Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 2043 (3d ed. 2004)).
The Confidentiality Order provides that a party “may designate documents as
CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER but only after review of the
documents by an attorney … who has in good faith determined that the documents contain
information protected from disclosure by statute or that should be protected from disclosure
as confidential personal information, trade secrets, personnel records, or commercial
information.” (Order ¶ 3.) A party may serve an objection to the designation and in the
objection, the party “shall specify the documents to which the objection is directed and
shall set forth the reasons for the objection as to each document or category of documents.”
(Id. ¶ 9(a).) The Order directs the parties to meet and confer “in a good faith effort to
resolve the objection by agreement,” and if that effort fails, the designating party must file
a motion to retain the confidential designation. (Id. ¶¶ 9(b)-(c)).
Plaintiff contends that the designated documents “discuss highly sensitive
proprietary information concerning Lobster 207’s pricing practices, its employment and
investigation of [Defendant] Warren Pettegrow, as well as general business practices.”
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(Motion at 2.)1 According to Defendants, the “recordings, and transcripts of [the]
recordings, are not protected from disclosure by statute, and they do not contain the
personal information, trade secrets, personnel records, or commercial information that may
otherwise protect recorded communications from disclosure.” (Motion, Exhibit A, ECF
No. 197-1.)
Each party maintains that the other party failed to provide the specificity to support
their respective positions as required by the Confidentiality Order. In response to
Plaintiff’s confidential designation of the documents, Defendants asserted that none of the
recordings contains confidential information under the Confidentiality Order. Given that
a review of the three transcripts filed by Plaintiff reveals that some portions of the
recordings might contain confidential information while other portions might not,
Plaintiff’s contention that Defendants did not assert a specific objection in accordance with
the Confidentiality Order is not without some merit. Defendants broad objection, however,
is likely in part the product of Plaintiff’s blanket designation of all the documents as
confidential even though some portions of the documents are arguably not confidential.
Although some of the documents might “merit a confidentiality designation, [Plaintiff] is
not entitled to summarily designate all [of the documents] as confidential.” Ouellette, 2016
WL 7263044, at *2. “[I]t is counsel’s burden to first review the [documents] and designate
those portions that are alleged to be confidential. It is not proper practice to designate the
entire” set of the documents “confidential.” Bailey v. Me. Comm’n on Govt’l Ethics &
1 Plaintiff attached to its motion transcripts of three recordings in support of its contention.
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Election Practices, No. 1:11-cv-00179-JAW, 2011 WL 6444585, at *4 (D. Me. Dec. 19,
2011).
Because the Court considers both the designation and the objection to lack the detail
required by the Confidentiality Order, because the Court recognizes that some portions of
the documents might contain confidential information, and because the Court discerns no
prejudice to the parties if a decision as to the merits of the designation is deferred until after
the parties have communicated further about the relevant issues,2 the Court will deny
Plaintiff’s motion without prejudice, but allow Plaintiff to maintain the designation at least
temporarily to allow time for the parties to communicate further about the designation.
CONCLUSION
Based on the foregoing analysis, the Court denies without prejudice Plaintiff’s
motion. The Court orders:
1. If Plaintiff wants to maintain the confidential designation for any or all of the
documents, within 21 days of the date of this order, Plaintiff shall notify
Defendant of the documents for which Plaintiff seeks to maintain the
confidentiality designation in sufficient detail for Defendants to assess the merits
of the designation.
2 One purpose of a confidentiality order is to facilitate the exchange of relevant information without the
need for a party to seek protective order whenever the party believes a discovery request requires the
production of confidential information. A confidentiality order allows the parties to produce the
information in discovery and defer the resolution of any disagreements they might have as to whether
certain information should be considered confidential. Plaintiff has produced the documents and the Court
is not aware that Defendants would be prejudiced if a final decision on the confidentiality of the documents
is deferred to permit the further proceedings set forth herein.
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2. If Defendants object to any of Plaintiff’s designations, in accordance with the
specificity requirement of paragraph 9(a) of the Confidentiality Order,
Defendants shall identify the documents Defendants contend do not warrant the
confidential designation and explain the reason(s) for each objection.
3. Counsel shall meet and confer to attempt to resolve any disputes regarding the
designation.
4. If any dispute remains unresolved, Plaintiff may move to retain the confidential
designation.
5. Unless Plaintiff fails to designate the documents as confidential in accordance
with paragraph 1 above or the parties otherwise agree, the confidential
designation of the documents shall remain until further order of the Court.
NOTICE
Any objections to this Order shall be filed in accordance with Federal Rule of Civil
Procedure 72.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 22nd day of July, 2021.
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