Rowe v. Liberty Mutual Group, Inc. , 639 F. App'x 654 ( 2016 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 15-1536
MICHAEL A. ROWE,
Plaintiff, Appellee,
v.
LIBERTY MUTUAL GROUP, INC.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph Laplante, U.S. District Judge]
Before
Torruella, Lynch, and Kayatta,
Circuit Judges.
David J. Kerman on brief for defendant-appellant.
Michael A. Rowe pro se.
February 12, 2016
KAYATTA, Circuit Judge. This case returns to this court
from an earlier remand instructing the district court to reconsider
its order effectively lifting, post-judgment, a "Discovery
Confidentiality Agreement and Protective Order" ("Protective
Order") entered into by plaintiff-appellee Michael Rowe ("Rowe")
and defendant-appellant Liberty Mutual ("Liberty"). Finding no
abuse of discretion in the district court's reconsideration of its
ruling on remand, we affirm.
I. Background
A. The Protective Order
Under the Protective Order, Liberty was able to
designate as "Confidential" documents produced by it in the
litigation that Liberty in good faith contended met certain
criteria, such as being subject to the attorney-client or work
product privileges. In responding to discovery requests by Rowe,
Liberty so designated various documents to which Rowe, as a former
Liberty employee, had already been privy.
Under paragraph 6 of the Protective Order, Rowe retained
the right to challenge such a designation at any time. The agreed-
upon procedure under the Protective Order for challenging
confidentiality designations consisted of three steps: first, the
party objecting to the designation must serve on the designating
party a written objection to the designation, describing "with
particularly the documents or information in question . . . and
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the grounds for objection;" second, the designating party must
respond in writing to the objection within ten days, stating "with
particularity the grounds for asserting that the document or
information is Confidential;" and third, if a dispute to a
Confidential designation cannot be resolved by the parties' good
faith efforts, the party proposing the designation must "present
the dispute to the Court by a formal motion for an order regarding
the challenged designation."
B. Rowe's Challenge to the Protective Order
As his own claim against Liberty confronted what turned
out to be a successful motion for summary judgment, Rowe challenged
Liberty's designations by serving on Liberty a writing stating
that he was "objecting to the confidentiality designations of all
evidence referenced by either Liberty Mutual or Rowe in any and
all Pleadings filed by either of the parties in this litigation to
date." This challenge applied not only to the excerpts of these
documents currently on the docket, but to the "entirety" of any
such documents. Liberty thereupon communicated to Rowe Liberty's
position that Rowe's blanket challenge to its designations was
inadequate under the Protective Order because, Liberty argued,
Rowe did not describe "with particularity the documents or
information in question and . . . state the grounds for objection."
Rowe apparently maintained that he need do no more because, inter
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alia, he claimed that the documents were not even subject to the
Protective Order.
Liberty brought the dispute to the district court,
seeking a supplemental protective order declaring that it was too
late for Rowe to challenge confidentiality designations (because
the documents could have no use in the litigation at that stage)
and declaring, in the alternative, that Rowe had failed to
challenge the designations with the required particularity.
The district court disagreed with Liberty's suggestion
that "there is presently no legitimate use that [Rowe] can make of
the confidential material," and thus rejected Liberty's timing
argument. Procedural Order, Rowe v. Liberty Mut. Grp., Inc., No.
11-cv-366-JL at 3 (D.N.H. Feb. 27, 2014), ECF No. 138. As for the
Protective Order, the district court decided not to require Rowe
to provide a more particularized challenge to Liberty's
designations. The court further observed that some of the
documents in question with which the district court was already
familiar were clearly not privileged. Id. at 5–6.
The court therefore ordered Liberty to file a motion
"(1) listing the documents over which it wishes to preserve its
confidentiality designations; (2) attaching each of those
documents, under seal; and (3) explaining the basis of each of
those designations, with reference to additional evidentiary
materials or legal authority, if necessary." Id. at 6–7.
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Rejecting Liberty's request for more time, the district court
required that Liberty file its papers in two weeks, likely assuming
that Liberty would not have pressed its confidentiality
designations in good faith without having already analyzed each
document to confirm its classification as privileged.
Liberty thereafter filed what essentially amounted to a
bare bones privilege log, with a memorandum discussing various
legal principles pertinent to general categories of
confidentiality claims. Rowe objected, claiming this was
inadequate, as it gave no indication why the specific documents
were privileged. The court allowed Liberty to file a reply
memorandum, in which Liberty included, for the first time, a
document-by-document explanation of a limited subset of documents
it believed should be subject to the Protective Order as
privileged. The court noted that although Liberty's reply
memorandum may have "provide[d] the information necessary for this
court to rule on Liberty Mutual's designations as to a much smaller
set of documents", Liberty had waited too long to provide such
information by presenting it for the first time in a reply memo.1
1 The district court appears to have relied on its Local Rules to
buttress its point that reply memos are not to be used to advance
arguments that should have been in the opening memo. Oddly, the
Local Rules for the District of New Hampshire, although they have
such a requirement regarding dispositive motions, are silent on
the point in connection with nondispositive motions. Compare N.H.
L.R. 7.1(e)(1) and N.H. L.R. 7.1(e)(2). In any event, Liberty
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Summary Order, Rowe v. Liberty Mut. Grp., Inc., No. 11-cv-366-JL
at 9–10 (D.N.H. Apr. 29, 2014), ECF No. 160. The court ultimately
ordered that all the designations were unsustained, allowing Rowe
to deal with the documents free of the strictures of the Protective
Order.
C. Liberty's Prior Appeal
On Liberty's appeal, we vacated the district court's
ruling. Rowe v. Liberty Mut. Grp., Inc., No. 14-1475 (1st Cir.
Feb. 17, 2015), ECF No. 174. We regarded the district court's
actions as a modification of the Protective Order, which is only
warranted when the district court finds that there has been "a
significant change in circumstances." Id. at 2 (quoting Pub.
Citizen v. Liggett Grp., Inc., 858 F.2d 775, 790 (1st Cir. 1988).
In deciding whether to modify such an order, district courts must
weigh a number of factors. See Griffith v. Univ. Hosp., L.L.C.,
249 F.3d 658, 661 (7th Cir. 2001); Poliquin v. Garden Way, Inc.,
989 F.2d 527, 535 (1st Cir. 1993); 8A Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure § 2044.1 (3d ed., online
edition updated Sept. 2014).
does not contest the district court's interpretation of local
briefing requirements.
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D. Order on Remand
On remand, the district court issued a careful and
informative opinion explaining that, in effect, its only
modification of the Protective Order was to relieve Rowe from his
arguable obligation to provide a more particularized challenge to
Liberty's designations. Order on Remand, Rowe v. Liberty Mut.
Grp., Inc., No. 11-cv-366-JL (D.N.H. Apr. 28, 2015), ECF No. 176.
Otherwise, all it did was require Liberty, in compliance with
paragraph 6 of the Protective Order, to present the dispute to the
court by a formal motion for an order regarding the challenged
designation. Id. at 2. Thus, the district court's order was more
in the nature of an application of the Protective Order rather
than a substantive modification. Id.
Training on the very limited modification of the
Protective Order implicit in the Procedural Order, the district
court examined the factors and authorities as we instructed. In
so doing, the district court noted that the Protective Order was
the type of "blanket protective order" that was "particularly
subject to later modification." Id. at 13–14 (quoting Pub.
Citizen, 858 F.2d at 790). The Protective Order--and the district
court--also provided Liberty with an opportunity to demonstrate
why any particular document should remain confidential.
Importantly, the district court also noted that because the
Protective Order allowed any designation to be challenged at any
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time, and placed the burden of proof on Liberty just as if there
were no Protective Order, Liberty could not have relied on any
expectation that its documents would remain confidential without
Liberty having to establish an entitlement to such treatment. Id.at 15–16. The district court further questioned the reasonableness
of Liberty's reliance on the Protective Order, because "umbrella
orders" of this type are "likely to be found to provide a less
forceful basis for reliance than a more particularized
order . . . ." Id. (quoting Pub. Citizen, 858 F.2d at 279–80).
As we ordered, the district court also took a fresh look
at whether the confidentiality designation should be overborne
(or, rather, whether Liberty carried its burden of showing that
the documents Liberty designated as confidential were entitled to
protection under the Protective Order). In reaffirming its prior
ruling, the district court relied on Liberty's failure to timely
provide the proof necessary to show, for each challenged document,
that it was privileged.
II. Analysis
We review district court rulings on procedural orders
for abuse of discretion. Poliquin, 989 F.2d at 535. We have
reviewed Liberty's motion and its list of documents. While the
list likely sufficed as a privilege log to accompany a document
production, see Fed. R. Civ. P. 26(b)(5), neither the list nor the
motion provided the district court with any feasible means of
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understanding why each document is privileged. There was no
affidavit explaining who is a lawyer, who is a proper client
representative, and why the communication is properly within the
scope of the privilege. Instead, Liberty basically filed a memo
setting forth general factors for assessing claims of privilege,
and then let the district court go through 2,000 pages trying to
figure out how these factors applied to each document.2 While
categorical treatment of voluminous documents can sometimes
suffice, (e.g., "emails from general counsel to senior manager
limited to subject of X and retained in confidence as confirmed in
affidavit of Y"), here the district court did not abuse its
discretion in finding a failure to prove that the documents were
privileged.
Importantly, this is not a situation in which the court
first held a document to be privileged, and then later reversed
itself. Rather, the court at most tweaked and foreseeably
supplemented the procedure for implementing the dispute resolution
procedures under the Protective Order. Not requiring a plaintiff,
who bore no burden of persuasion, to make a list of every document
2 As noted by the district court in its Order on Remand, Liberty
"made much of the fact that, following its initial submission in
support of its designations, it filed a reply memorandum making a
more specific showing as to particular documents." Order on Remand
at 8. In this reply, however, Liberty itself stated that it
"continues to assert that the detailed information accompanying
its initial submission supports preserving the confidentiality of
all materials submitted," that is, all 2,000-plus pages.
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when he was challenging them all on the same ground caused no
prejudice to Liberty. And Liberty can hardly complain that the
district court spelled out in advance what Liberty need establish
in its motion to prevail. That the court left it to Liberty to
determine what evidence would be necessary to carry its burden did
not change the protective order, and seems appropriate on such a
straightforward matter.
III. Conclusion
Finding no abuse of discretion, we affirm the district court's
order on remand.
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