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Bobrick Washroom Equipment, Inc. v. Scranton Products, Inc.

United States District Court, M.D. Pennsylvania

August 23, 2017

BOBRICK WASHROOM EQUIPMENT, INC. Plaintiff,
v.
SCRANTON PRODUCTS, INC. Defendant.

          MEMORANDUM OPINION

          Robert D. Mariani United States District Judge

          I. INTRODUCTION

         In the 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.

         II. STATEMENT OF FACTS

         Two paragraphs of the MSPO are principally at issue in this dispute: paragraphs 3(c) and 4.[1] 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.[2]

         The MSPO also contains a provision governing inadvertent failures to designate.

         Paragraph 4 provides:

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.

(Id.at¶4).

         According 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.

         III. ANALYSIS

         At the 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 ...


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