Owen v. Audubon Field Solutions, LLC

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DAVID OWEN,
Plaintiff,
v. No. 2:24-cv-0215 MLG/DLM
AUDUBON FIELD SOLUTIONS, LLC,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on: (1) Plaintiff David Owen’s Motion to Enforce the
Court’s April 8, 2026 Order (Doc. 118); (2) Owen’s Motion to Enter Proposed Protective Order
(Doc. 121); (3) Owen’s Motion to Enforce the Court’s February 24, 2026 Order (Doc. 122); and
(4) Defendant Audubon Field Solutions, LLC’s Motion for Entry of Protective Order (Doc. 123).
Having considered the parties’ arguments and the relevant law, the Court finds as follows.
I. Relevant History
On February 24, 2026, following a motion hearing, the Court entered a Memorandum
Opinion and Order granting in part Owen’s December 15, 2025 Motion to Compel Discovery. (See
Docs. 78; 94–95; 103.) Relevant here, the Court found that “Audubon never provided a privilege
log as required by Rule 26(b)(5)(A) and as directed by the undersigned at the December 1, 2025
informal discovery conference.” (See Doc. 103 at 7 (citing Doc. 74 at 3).) The Court noted that
“the law is clear that the Court may find that Audubon waived any claim of privilege by failing to
produce a privilege log [but] . . . decline[d] to impose such a harsh penalty” on Audubon by
requiring it to produce all 640 pages of documents at issue in the privilege log it finally produced
to the Court in February 2026. (See id. at 2, 7 (citing Anaya v. CBS Broadcasting, Inc., 251 F.R.D.
645, 650 (D.N.M. 2007)).) Rather, the Court found that a number of pages were not protected by
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attorney-client privilege or the work-product doctrine and ordered Audubon to turn those
documents over to Owen. (See id. at 7–8.) The Court also ordered Audubon, by March 10, 2026,
to “either file a motion for protection on those documents it believes are still privileged or turn the
documents over to Owen.” (See id. at 8–9.)
On March 10, 2026, Audubon filed a motion to reconsider. (See Doc. 106.) On April 8,
2026, the Court denied the motion and ordered Audubon to produce certain documents no later
than April 13, 2026. (See Doc. 116 at 4.) The Court further ordered the parties to confer and submit,
no later than April 18, 2026, a proposed stipulated protective order regarding the documents at
issue in the motion to reconsider. (See id.)
On April 14, 2026, Owen filed the Motion to Enforce the Court’s April 8, 2026 Order. (See
Doc. 118.) Owen reported that Audubon failed to produce any documents by the Court’s April 13,
2026 deadline. (See id. at 2.) The Court ordered Audubon to file written notice showing good cause
for its failure to comply with the order. (Doc. 119.) Audubon then filed a Notice of Compliance.1
(Doc. 120.) It later explained that it failed to timely produce the documents due to an administrative
oversight. (See Doc. 126.) The Court found Audubon’s explanation satisfactory. (See Doc. 128.)
On April 17, 2026, Owen filed two additional motions: one for a protective order, and one
seeking to enforce the Court’s February 24 Order—that is, to compel Audubon to produce the
documents at the center of the forthcoming protective order. (See Docs. 121–22.) The following
day, Audubon filed its own motion for protective order. (Doc. 123.)
II. Analysis
A. Owen’s Motion to Enforce the Court’s April 8 Order (Doc. 118)
The Court will deny as moot Owen’s Motion to Enforce the Court’s April 8, 2026 Order.
1 Audubon later filed an amended notice and a claw back notice, as it mistakenly produced the incorrect documents to
Owen. (See Docs. 124–25.)
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(Doc. 118.) Owen alerted the Court that Audubon had not produced documents as ordered. (See
id. at 1–2 (citing Doc. 116 at 4).) Audubon has since filed notice of its compliance with the Court’s
order. (See Docs. 120; 126.) As a result, the Court quashed its Order to Show Cause, finding no
bad faith in Audubon’s inadvertent failure to meet the court-imposed deadline. (See Docs. 119;
128.) Accordingly, the Court finds Owen’s Motion to Enforce (Doc. 118) should be denied as
moot.
B. The Parties’ Motions for a Protective Order (Docs. 121; 123) and Owen’s
Motion to Enforce the Court’s February 24, 2026 Order (Doc. 122)
Before turning to the parties’ dueling motions for a protective order (see Docs. 121; 123),
the Court first addresses Owen’s motion to enforce and his contention that Audubon violated a
Court order to produce certain documents by April 18, 2026. (See Docs. 121 at 2; 122.) To begin,
the documents at issue in the motions for protective order and the motion to enforce are the same
documents Audubon discussed in its motion to reconsider.2 (See Docs. 105; 116 at 4; 121–23.)
In its April 8 Order denying Audubon’s motion to reconsider, the Court required Audubon
to “produce all documents that are not at issue in the motion to reconsider” by April 13, 2026, and
ordered the parties to “submit a proposed stipulated protective order” by April 18, 2026. (See Doc.
116 at 4.) Owen misstates this Order and asserts that the Court required Audubon to “submit a
proposed stipulated protective order . . . and produce said documents to [Owen]” by April 18.
(Doc. 121 at 2 (citing Doc. 116) (emphasis added).) The April 8 Order contains no such
requirement. Nowhere did the Court order Audubon to produce the remaining documents to Owen
simultaneously with the submission of the proposed stipulated protective order. Rather, as defense
counsel pointed out in an email to plaintiff’s counsel, “[i]t is logical that the Court must, at a
2 As identified by Audubon, the documents are Bates-stamped 00001–2, 000013, 000023–27, 000038–39, 0000550–
551, 555–560, 574–575, 576–588, 614–615, 631–632, 635. (See Doc. 105 at 1–3.)
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minimum, first approve the protective order” before Audubon produces the documents. (See Doc.
122-1 at 4.) Defense counsel is correct. There is no need to turn over documents until after the
Court enters a protective order. Consequently, the Court denies Owen’s motion to enforce.3 (Doc.
122.)
Having considered the parties’ proposed protective orders, the Court finds Audubon’s
version is acceptable with the red-lined changes set out below, which conform to the sample
protective order available on the undersigned’s chambers website,
https://www.nmd.uscourts.gov/content/honorable-damian-l-martinez. Audubon’s Stipulated
Protective Order begins with two introductory paragraphs that describe the purpose and scope of
the protective order. (See Doc. 123-1 at 2.) The Court discusses the substantive portion of the
proposed protective order below.
1. Within 5 days of the date of this Order, and pursuant to this Order, Defendant
will produce documents bates numbered: 00001–2, 000013, 000023–27, 000038–
39, 0000550–551, 555–560, 574–575, 576–588, 614–615, 631–632, and 635 with
a “Confidential-Attorney’s Eyes Only” designation (the “AEO Confidential
Documents”). To the extent that the Confidential Documents are available to the
public or have not previously been kept in a confidential manner, they are exempted
from this Order.
2. The AEO Confidential Documents shall not be disclosed to Plaintiff during the
litigation and may only be reviewed by the attorneys of record for the parties, their
employees, the Court, and court reporterscourt personnel. Unless otherwise ordered
by the Court or provided for in this Order, any party receiving the AEO Confidential
Documents Confidential information must hold and maintain such information or
document solely for use in connection with this action and must not disclose the
information or document to any other person except those identified in paragraphs
2–3.
3. The Confidential Documents may further be disclosed to an insurer, consultant,
or expert employed in connection with this litigation by an attorney of record for
the parties; provided, however, that before Confidential Documents are disclosed
to any such individual, said attorneys shall secure from the individual an
3 If necessary, Owen may refile the motion if Audubon misses the deadline for the documents’ production as directed
herein.
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acknowledgment that the individual has read and agrees to abide by the terms of
this Order.
4. Within thirty days after entry of final judgment or other final resolution of the
matter, Plaintiff’s attorneys must, upon written request by Defendant’s attorneys,
return all AEO Confidential Documents and copies to the producing party or
provide certification of the destruction of such ConfidentialAEO Documents.
Notwithstanding the foregoing, each party’sies’ counsel may retain their working
files on the condition that those files will remain confidential.
(Doc. 123-1 at 2–3.)
Owen’s argument that “Audubon’s proposed protective order contain[s] no terms that
would allow Owen (or any party) to actually use any such designated documents, nor any
mechanism to challenge the proposed [Confidential] designations[,]” is incorrect. (See Doc. 121
at 2–3.) The following paragraphs, as modified to conform to the undersigned’s sample protective
order, should assuage Owen’s concerns.
5. The foregoing is without prejudice to the right of any party to apply to the Court
for an order to:
a. Further protect the ConfidentialAEO Documents;
b. Seek protection regarding the production of documents or information;
c. Modify or remove a designation of “Confidential-Attorney’s Eyes Only”;
d. Compel production of documents or information; or
e. Modify this Order.
6. Use in Filings. Material designated Confidential may be used in briefing,
motions, or hearings, provided that any such material is filed under seal or provided
to the Court in camera.The parties acknowledge that this Order does not entitle
them to seal confidential information filed with the Court. In the event a party seeks
to file any Confidential Document subject to protection under this Order with the
Court, that party must take appropriate action to ensure that the document receives
proper protection from public disclosure, including: (a) filing a redacted document
with the consent of the party who designated the document as confidential; (b)
where appropriate (e.g., in relation to discovery and evidentiary motions),
submitting the document solely for in camera review; or, (c) when the preceding
measures are inadequate, seeking leave to file the document or portions thereof
under seal by filing a written motion for leave to file under seal.
7. The submitting party may file a Confidential Document protected under this
Order as a separate sealed exhibit before a sealing order is obtained.
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Contemporaneously with that filing, however, the party must file a motion for leave
to file the document under seal, identifying the party that has designated the
material as confidential (“the designating party”). If the party filing the document
containing confidential information is the designating party, the motion for leave
to file under seal should include a declaration identifying the confidential
information contained in the document and explaining why the document is
sealable. If the party filing the document is not the designating party, the
designating party must file a declaration identifying the confidential information
contained in the document and stating whether the designated material is sealable,
and if so, why, within 14 days of the filing of the motion to file under seal. If the
designating party does not file a responsive declaration within the 14-day time
period, the submitting party may file the document in the public record no earlier
than four days, and no later than ten days, after the motion is denied.
8. The terms of this protective order do not preclude, limit, restrict, or otherwise
apply to the use of documents at court proceedings. Subject to the Federal Rules of
Evidence, a Confidential Document may be offered into evidence at trial or any
court hearing, provided that the proponent of the evidence gives advance notice to
opposing counsel of the intended use of the Confidential Document as may be
required by a scheduling or other order. Any party may move the Court for an order
that the Confidential Document be received in camera or under other conditions to
prevent unnecessary disclosure. The Court will then determine whether the
proffered evidence should continue to be treated as a confidential document and, if
so, what protection(s) may be afforded to such information at the trial or hearing.
9. Nothing in this Protective Order constitutes an admission by any party that
Confidential Information disclosed in this case is relevant or admissible. Each party
maintains its right to object to the use or admissibility of all Confidential
Information pursuant to applicable law and rules.
(Doc. 123-1 at 3.)
The Court will enter the protective order separately. Audubon shall produce the
Confidential Documents no later than three business days following entry of the protective order.
IT IS THEREFORE ORDERED that Owen’s Motion to Enforce the Court’s April 8,
2026 Order (Doc. 118) is DENIED AS MOOT.
IT IS FURTHER ORDERED that Owen’s Motion to Enter Proposed Protective Order
(Doc. 121) and Owen’s Motion to Enforce the Court’s February 24, 2026 Order (Doc. 122) are
DENIED.
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IT IS FURTHER ORDERED that Defendant Audubon Field Solutions, LLC’s Motion
for Entry of Protective Order (Doc. 123) is GRANTED IN PART, and the Court will separately
enter a modified protective order as outlined herein.
IT IS FURTHER ORDERED that Audubon shall produce the Confidential Documents
no later than three business days following entry of the protective order.
_______________________________________
DAMIAN L. MARTINEZ
UNITED STATES MAGISTRATE JUDGE
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