FOX et al v. MAKIN et al

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
GREGORY FOX et al., 	)
)
Plaintiffs 	)
)
v. 	) 	2:22-cv-00251-JAW
)
PENDER MAKIN, et al., 	)
)
Defendants 	)
ORDER ON MOTION TO RETAIN CONFIDENTIALITY DESIGNATION
Pursuant to the Confidentiality Order in this case (Order, ECF No. 87), Defendant
Makin designated the video recording of the deposition of Laura Blaisdell, M.D., as
“confidential.” 	Following 	Plaintiff 	Gregory 	Fox’s 	objection 	to 	Defendant 	Makin’s
confidential designation, Defendant Makin moves to retain the confidential designation.
(Motion, ECF No. 153.) Plaintiff Gregory Fox opposes the motion. (Response to Motion,
ECF No. 157.) None of the other parties objects to the requested relief.
Following a review of the relevant portions of the record, and after consideration of
the parties’ arguments, the Court grants Defendant’s motion.
LEGAL STANDARD
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
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
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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 “[d]eposition testimony shall be deemed
CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER only if designated as such.
Such designation shall be specific as to the portions to be designated CONFIDENTIAL -
SUBJECT TO PROTECTIVE ORDER.” (Order ¶ 4, ECF No. 87.) A party may object to
a confidentiality designation. (Id. ¶ 8.) 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. ¶ 8(b)–(c)).
DISCUSSION
Defendant Makin moves to retain the confidentiality designation of the video
recording of Dr. Blaisdell’s deposition “to limit the use of the video recording to this
proceeding.” 1 (Motion at 1.) 	Defendant Makin is concerned that the video could be used
to portray Dr. Blaisdell and her testimony inaccurately. (Id. at 2.) Defendant Makin points
to 	past 	online 	and 	in-person 	harassment 	of 	Dr. 	Blaisdell, 	which 	included 	altered
photographs of Dr. Blaisdell and internet memes that contained inappropriate language.
(Id. at 2.) 	Based on this history, Defendant Makin is concerned that the video recording
could be misused if the confidentiality designation is not retained. (Id.)
1 Defendant Makin did not designate the transcript of the deposition as confidential.
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Plaintiff Gregory Fox contends that he is entitled to use the video deposition for
“private matters and legitimate uses,” which include the use of the video recording “as
evidence in a legal matter.” (Response at 7.) Additionally, Plaintiff Gregory Fox argues
that the Confidentiality Order does not allow for the video deposition in its entirety to be
designated confidential. (Id. at 5.) Addressing Defendant Makin’s concern about the video
contributing to the harassment of Dr. Blaisdell, Plaintiff Gregory Fox asserts that the Court
“overruled” the argument in its July 8, 2024, Order on Discovery Issue. (Id. at 8.)
Defendant’s concern about potential misuse of the video recording and the related
harassment of Dr. Blaisdell is reasonable. The uncontroverted evidence demonstrates that
the risk is legitimate. (See Affidavit of Laura Blaisdell, ECF No. 153-1.) Plaintiff Gregory
Fox’s arguments do not undermine the concern. 	Not insignificantly, the continued
designation would not limit Plaintiff Gregory Fox’s use of the video deposition in this case
and places no restriction of his use of the written transcript of Dr. Blaisdell’s deposition
testimony.
Plaintiff Gregory Fox’s contention that the Confidentiality Order does not permit a
party to designate an entire deposition as confidential is unavailing. 	His reliance on the
Order’s provision that confidential designation of deposition testimony must “be specific
as to the portions to be designated [confidential]” is misplaced. (Order ¶ 4.) The purpose
of the provision is to ensure that parties are specific in their requests for a confidentiality
designation, not to limit the extent to which a deposition can be designated as confidential.
Finally, contrary to Plaintiff Gregory Fox’s contention, the Court did not overrule
Defendant Makin’s concerns about potential harassment of Dr. Blaisdell. In in its July 8,
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Order, 	the 	Court 	explained 	that 	the 	parties’ 	disagreement 	regarding 	confidential
designations was governed by the Confidentiality Order. (Order on Discovery Issue at 1–
2.) The parties followed the process contemplated by the Order, and the parties’ dispute is
now before the Court.
For 	the 	reasons 	explained 	herein, 	the 	Court 	concludes 	that 	Defendant 	has
demonstrated good cause to maintain the confidential designation of the video recording
of Dr. Blaisdell’s deposition. 	The Court’s determination is consistent with the Court’s
authority, for good cause, to “issue an order to protect a person from annoyance,
embarrassment, [or] oppression.” Fed. R. Civ. P. 26(c)(1). 2
C ONCLUSION
Based on the foregoing analysis, the Court grants Defendant Makin’s motion to
retain the confidential designation as to the video recording of Dr. Blaisdell’s deposition.
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 24th day of October, 2024.
2 To the extent that Plaintiff Gregory Fox might argue that the designation to implicate the public’s right of
access to court proceedings, the argument fails. The public, however, has no right of access to materials
produced in discovery. See United States v. Kravetz, 706 F.3d 47, 55 (1st Cir. 2013) (noting the public has
no right to access materials produced through civil discovery); Doe v. Smith, No. 2:23-cv-00423-JAW,
2024 WL 2109731, at *5 (D. Me. May 8, 2024) (“The Kravetz Court resolved one issue: whether there is a
right of public access to civil discovery. There is none.”).
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