United States District Court, M.D. Pennsylvania
BOBRICK WASHROOM EQUIPMENT, INC. Plaintiff,
SCRANTON PRODUCTS, INC. Defendant.
D. Mariani United States District Judge
latest dispute between the parties, Plaintiff Bobrick
Washroom Equipment, Inc. ("Bobrick") claims that
Defendant Scranton Products, Inc. ("Scranton
Products") waived its right to designate certain
information as attorneys' eyes only ("AEO").
Specifically, Bobrick contends that Scranton Products'
failure to timely designate as AEO portions of the deposition
transcript of Eric Jungbluth and documents produced by third
party Washington Penn Plastics ("WPP") in
accordance with the time limitations set forth in the
Modified Stipulated Protective Order ("MSPO")
prohibits it from now designating this information as AEO.
(Doc. 60). Scranton Products, in contrast, asserts that its
failure to timely designate was "inadvertent" and
therefore it is permitted to designate this information as
AEO under the plain language of the MSPO. Alternatively,
Scranton Products' asks the Court to exercises its
discretion under Federal Rule of Civil Procedure 6(b)(1)(B)
and allow it to make untimely designations.
STATEMENT OF FACTS
paragraphs of the MSPO are principally at issue in this
dispute: paragraphs 3(c) and 4. Paragraph 3(c) provides:
If any party wishes to designate as Confidential or
Attorneys' Eyes Only documents or things produced by a
non-party during the course of this litigation within the
scope of paragraph 2 above, the designating party shall make
such designation by: (i) if the designation sought is
Confidential, (A) informing the opposing party in writing as
to which specific documents are being designated Confidential
and (B) producing to the opposing party true and exact copies
of the designated documents bearing the confidentiality
marking prescribed by Paragraph 3(a) of this Order; or (ii)
if the designation sought is Attorneys' Eyes Only, giving
the notice and following the other procedures required by
Paragraph 3(b) of this Order. Such Confidential designations
shall be completed and Attorneys' Eyes Only notices shall
be given within ten (10) calendar days of the designating
party's initial receipt of the documents or things
produced by the non-party. Subject to the provisions of
paragraph 4 relating to inadvertent failure to designate, if
no notice of a Confidential or Attorneys' Eyes Only
designation of non-party information is given within the time
prescribed in this paragraph, the documents and things
produced by the non-party will be considered devoid of
Confidential and Attorneys' Eyes Only information.
(Doc. 60, at ¶ 3(c)). It is undisputed that Scranton
Products did not designate certain information in the
documents produced by WPP until sixteen days after receipt of
those documents-six days later than permissible under the
MSPO. It is also undisputed that Scranton Products did not
timely designate certain information in the deposition
transcript of Eric Jungbluth as AEO.
MSPO also contains a provision governing inadvertent failures
The inadvertent failure to designate or withhold any
information as Confidential or Attorneys' Eyes Only will
not be deemed to waive a later claim as to its confidential
or privileged nature, or to stop the producing party from
designating such information as Confidential or
Attorneys' Eyes Only at a later date in writing and with
particularity. The information shall be treated by the
receiving party as Confidential or Attorneys' Eyes Only
from the time the receiving party is notified in writing of
the change in the designation. Notwithstanding the foregoing,
a party may not, under this Paragraph 4, (i) newly designate
any information as Confidential or Attorneys' Eyes Only
or (ii) redesignate any information from Confidential to
Attorneys' Eyes Only, at any time later than ten (10)
days before the first deposition taken by the opposing party.
A party may still make appropriate initial designations of
newly-produced information in accordance with the procedures
and time limits set forth in Paragraph 3.
to Bobrick, nothing in the MSPO permits Scranton Products to
now attempt to designate certain information contained in the
WPP production or Jungbluth deposition as AEO. (Doc. 401).
Scranton Products, in contrast, claims that the plain
language of the MSPO permits it to designate this information
as AEO because its failure to timely designate was
"inadvertent." (Doc. 403). The Court held a
telephone conference on August 22, 2017 to discuss the
parties' respective positions.
outset, the Court notes that it rejects Scranton
Products' interpretation of the MSPO as set forth in its
letter brief and advanced by counsel during the telephone
conference. Many of the arguments advanced by Scranton
Products are illogical, circular, and, in particular, the
Court finds Scranton Products' reliance on the final
sentence of paragraph 4 of the MSPO to be misplaced. Nor does
the Court find Bobrick's proposed interpretation entirely
persuasive. The Court, however, chooses not to make a
definitive interpretation of the language at issue in the
MSPO. Rather, the Court will address whether ...