Rowe v. Liberty Mutual Group, Inc.

Not for Publication in West's Federal Reporter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

- 2 - 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

- 3 - 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.

- 4 - 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

- 5 - 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.

- 6 - 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

- 7 - 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

- 8 - 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.

- 9 - 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.

- 10 -