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York Group, Inc. v. Pontone

United States District Court, W.D. Pennsylvania

August 1, 2014

THE YORK GROUP, INC., MILSO INDUSTRIES CORPORATION, and MATTHEWS INTERNATIONAL CORPORATION, Plaintiffs,
v.
SCOTT PONTONE, HARRY PONTONE, BATESVILLE CASKET COMPANY, INC., and PONTONE CASKET COMPANY, LLC, Defendants.

OPINION

JOY FLOWERS CONTI, Chief District Judge.

I. Introduction

Pending before the court are six motions[1] relating to alleged violations of a protective order issued in this case on February 4, 2011 (the "protective order"). (ECF No. 69.) Defendants Scott Pontone and Pontone Casket Company (together, the "Pontone defendants") and Batesville Casket Company, Inc. ("Batesville") allege plaintiffs The York Group, Inc. ("York"), Milso Industries Corporation ("Milso"), and Matthews International Corporation (collectively with York and Milso, "plaintiffs") violated the protective order when they filed under seal two documents as exhibits to a motion to dismiss in a case filed by Scott Pontone against York and Milso in the Court of Chancery of the State of Delaware, Scott Pontone v. Milso Industries Corp. and The York Grp., Inc., Civ. Action No. 8842-VCP (Del. Ch. Mar. 18, 2014) ("Scott Pontone's Delaware Case"), and disclosed "highly confidential" information in their submissions filed on the docket in this case. This opinion addresses the Pontone defendants' allegations and the submissions by the parties with respect to the protective order.

II. Procedural History[2]

In this diversity action initiated by plaintiffs on August 16, 2010, the court has overseen a contentious and lengthy fact discovery period and, on March 6, 2014, decided the parties' voluminous cross-motions for summary judgment. (ECF Nos. 642, 643.) This case is currently in expert discovery and is scheduled for trial on December 1, 2014. (ECF No. 663.)

On October 15, 2013, plaintiffs filed a motion to amend the protective order. (ECF No. 609.) On October 23, 2013, the Pontone defendants filed a motion to expedite discovery with respect to plaintiffs' alleged violations of the protective order (ECF No. 610) and a motion to seal plaintiffs' motion to amend the protective order (the "first motion to seal") (ECF No. 611.) On October 28, 2013, plaintiffs filed an omnibus response in opposition to the Pontone defendants' motion to expedite discovery and motion to seal. (ECF No. 612.) On November 7, 2013, the Pontone defendants filed a motion for contempt against plaintiffs arguing, among other things, that plaintiffs violated the protective order with respect to a motion to dismiss filed in the Scott Pontone Delaware case and the disclosure of "highly confidential" information in their submissions in this case. (ECF No. 619.)[3] On November 7, 2013, the Pontone defendants filed an amended motion to expedite discovery with respect to plaintiffs' alleged violations of the protective order (the "amended motion to expedite discovery"). (ECF No. 614.)[4] On the same day, the Pontone defendants filed a response in opposition to plaintiffs' motion to amend the protective order. (ECF No. 615.) On November 13, 2013, the Pontone defendants with leave of court filed a reply brief with respect to their first motion to seal. (ECF No. 618.) On the same day, the Pontone defendants filed an erratum with respect to the motion for contempt. (ECF No. 619.)

On November 15, 2013, Batesville filed a response to plaintiffs' motion to amend the protective order and a motion for joinder with respect to the Pontone defendants' motion for contempt.[5] (ECF Nos. 620, 621.) On the same day, plaintiffs filed a response in opposition to the Pontone defendants' motion to expedite discovery with respect to plaintiffs' alleged violations of the protective order. (ECF No. 622.) On November 26, 2013, plaintiffs with leave of court filed a reply brief with respect to their motion to amend the protective order. (ECF No. 626.) On December 2, 2013, plaintiffs filed a response in opposition to the motion for contempt. (ECF No. 627.) Plaintiffs, as part of their response to the motion for contempt, requested the court to compel the production of an agreement dated April 7, 2013, between Scott Pontone and Batesville and requested their costs for responding to the motion for contempt. (Id.)

On December 4, 2013, the Pontone defendants filed a motion to seal (the "second motion to seal") plaintiffs' response in opposition to the motion for contempt. (ECF No. 628.) On December 13, 2013, plaintiffs filed a response in opposition to the second motion to seal. (ECF No. 631.) On December 16, 2013, the Pontone defendants filed a response in opposition to the motion to compel contained in plaintiffs' response to the motion for contempt. (ECF No. 633.)[6] On December 16, 2013, Batesville filed a response in opposition to the motion to compel contained in plaintiffs' response to the motion for contempt. (ECF No. 637.) On December 23, 2013, the Pontone defendants with leave of court filed a reply brief in further support of their motion for contempt. (ECF No. 638.)

The following motions, which relate to plaintiffs' alleged breaches of the protective order, having been fully briefed are now ripe to be decided by the court:

• Plaintiffs' Motion to Amend the Protective Order (ECF No. 609);
• Pontone defendants' First Motion to Seal (ECF No. 611);
• Pontone defendants' Motion for Contempt (ECF No. 619);
• Pontone defendants' Amended Motion to Expedite Discovery (ECF No. 614);
• Plaintiffs' Motion to Compel and for Costs (ECF No. 627); and
• Pontone defendants' Second Motion to Seal (ECF No. 628).

III. Factual Background

A. The Protective Order

Paragraph two of the protective order provides:

2. This Stipulated Protective Order shall govern the disclosure and use of "Confidential" information and documents and "Attorneys Eyes Only" information and documents, as defined in Paragraph 5, produced in connection with this litigation (collectively, "Protected Material"). All information which is - or has been - produced or discovered in this litigation, regardless of whether designated "Confidential" or "Attorneys' Eyes Only, " shall be used solely for the prosecution or defense of this litigation unless the information is available to the general public without a breach of the terms of this Stipulated Protective Order. The measures designated by the parties in this Stipulated Protective Order are reasonable and will not prejudice anyone or unduly burden the Court.

(ECF No. 69 ¶ 2 (emphasis added).) With respect to the disclosure of protected information under the protective order, paragraphs nine, ten and eleven of the protective order, in pertinent part, provide:

9. Protected Material shall not be exhibited, disseminated, copied, or in any way communicated to anyone for any purpose whatsoever, other than in conjunction with the above-captioned litigation. Except as provided for in this Stipulated Protective Order, the parties shall keep all Protected Material from all persons except as provided for by the terms of Stipulated Protective Order.
10. Neither the receiving party, its counsel, nor its representatives shall disclose documents designated as CONFIDENTIAL as defined by paragraph 5(a) herein, other than to the following persons (hereinafter referred to as "Qualified Persons - Confidential"):
...
(e) Designated representatives of Plaintiffs assigned to and necessary to assist counsel in the prosecution of this litigation, who expressly agree to comply with the terms of this Stipulated Protective Order, and whose identity(ies) are first disclosed to the party that produced the subject Protected Material;
(f) Plaintiffs' designated counsel of record in this action and employees of Plaintiffs' counsel acting at the direction of counsel, and assigned to and necessary to assist such counsel in the preparation or trial of this action;
(g) All attorneys for the parties in this action, including in-house attorneys, and their assistants, associates, paralegals, clerks, stenographic personnel, and other individuals specifically acting at the direction of counsel, and assigned to and necessary to assist such counsel in the preparation or trial of this action[.]
...
11. The parties and their designated representatives are precluded from sharing and/or disclosing CONFIDENTIAL information or documents to anyone other than a "Qualified Person - Confidential" as defined in Paragraph 10, herein. Accordingly, the parties and their designated representatives expressly agree to maintain the confidentiality associated with those documents designated as CONFIDENTIAL and agree that they will not disclose or otherwise share such information with anyone other than a "Qualified Person - Confidential" at any time

(Id. ¶¶ 9-11.)

With respect to the disclosure of documents labeled as "Attorneys' Eyes Only, " paragraph twelve of the protective order, in pertinent part, provides:

12. Upon receipt of documents designated as ATTORNEYS EYES ONLY, as defined by paragraphs 5(b)(i) and (ll) herein, counsel for the receiving party shall not disclose such documents other than to the following persons (hereinafter referred to as "Qualified Persons - Attorneys Eyes Only"):
...
(c) Plaintiffs' designated counsel of record in this action and other attorneys at the firm of such counsel[.]

(Id. ¶ 12.)

Paragraph thirteen of the protective order provides further instruction with respect to whom the documents labeled "Confidential" and "Attorneys' Eyes Only" may be disclosed. (Id. ¶ 13.) Paragraph thirteen provides:

13. Disclosure of CONFIDENTIAL or ATTORNEYS EYES ONLY information and documents shall be made to persons identified in Paragraphs 10 and 12 above, as applicable, only as necessary for this litigation, and, with respect to individuals identified in subparagraphs 10(a), (c), (e), (h) and (D and 12(1), only after the person to whom disclosure is made has been informed of this Stipulated Protective Order, and has agreed in writing to be bound by it, by signing the form of acknowledgment attached to this Stipulated Protective Order as Exhibit A - Acknowledgment. The terms of this Stipulated Protective Order shall be explained to such persons by the persons disclosing the Protected Material. The executed acknowledgment shall be retained by counsel disclosing the Protected Material. Protected Material shall not be disclosed to any person in any manner not specified in this Protective Order.

(ECF No. 69 ¶ 13 (emphasis added).)

Paragraph eight of the protective order sets forth a process for the parties to use to challenge designations of the documents labeled "Confidential" or "Attorneys' Eyes Only." (ECF No. 69 ¶ 8.) Paragraph eight provides:

A party challenging a confidentiality designation must request in writing that the designation be changed. The writing shall set forth the receiving party's basis for the challenge. The parties shall then meet and confer within 10 days of service of the written challenge in a good faith effort to resolve the challenge. If the parties are unable to resolve the challenge through the meet and confer, the challenging party may, within 10 days of the meet and confer, proceed to move the Court to resolve the dispute. Until the Court rules on the challenge, all ...

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