The opinion of the court was delivered by: WILLIAM J. MARTINI, District Judge
This matter comes before the Court on plaintiff's appeal from
Magistrate Judge Hedges' March 23, 2005 Order denying plaintiff's
request to modify the February 23, 2003 Protective Order.
Plaintiff allegedly sought to modify the Protective Order in
three ways: (1) to allow plaintiff to use the confidential
documents filed under seal in Hutchins v. UPS, No. 01-CV-1462
(Martini) ("Hutchins I") in this case, Hutchins v. UPS, No.
02-CV-4274 (Martini) ("Hutchins II");*fn1 (2) to grant
plaintiff himself access to documents produced under an
"attorney's eyes only" level of confidentiality; and (3) to
unseal all sealed documents filed in conjunction with
non-discovery pretrial motions in Hutchins I. Plaintiff's
requests were allegedly denied. For the following reasons,
plaintiff's appeal is DENIED, and the March 23, 2005 Order is
AFFIRMED AS MODIFIED. A district court may reverse a magistrate judge's order if it
finds the ruling clearly erroneous or contrary to law. See
28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); L. Civ. R.
72.1(c)(1)(A). When reviewing discovery disputes, district courts
in this district employ a more deferential standard abuse of
discretion because they fall within the unique purview of a
magistrate judge. See Republic of Philippines v. Westinghouse
Elec. Corp., 132 F.R.D. 384, 387 (D.N.J. 1990). The grant or
modification of a protective order is reviewed for an abuse of
discretion; and the magistrate judge's interpretation and
application of the legal standard for granting or modifying the
protective order is reviewed de novo. Pansy v. Borough of
Stroudsburg, 23 F.3d 772, 783-84 (3d Cir. 1994).
As for plaintiff's request to modify the February 23, 2003
Protective Order so that he can use documents filed under seal in
Hutchins I in this case, the Court concludes, as Magistrate
Judge Hedges found, that modifying the Protective Order is
unnecessary. A plain reading of the Protective Order permits
plaintiff's counsel to use confidential documents produced in
Hutchins I in this case. It states in pertinent part that
information produced pursuant to the Protective Order "shall only
be disclosed to plaintiff's attorneys . . . and it shall not be
disclosed to plaintiff or any other person without good cause
shown. . . ." (2/23/03 Protective Order). Thus, as worded, it
does not preclude plaintiff's attorney from using confidential
documents produced in Hutchins I to support its opposition
brief in Hutchins II. Indeed, Magistrate Judge Hedges said as
much during the February 24, 2005 hearing: "I have never heard of
an argument that a protective order somehow bars a party from
trying to admit it into evidence or send it into a court. . . ."
(2/24/05 Hearing Tr. at 12:13-15). In other words, he agreed with
counsel that she could use confidential salary information in
Hutchins II under the February 23, 2003 Protective Order. There
being no reason to modify the Protective Order, he correctly
denied her request.
And yet, despite this clear record, it would appear the wording
of the March 23, 2005 Order precludes the use of Hutchins I
confidential documents from being used in this case. It states in
relevant part: "ORDERED that plaintiff's request to modify the
protective order dated February 23, 2003 entered in [Hutchins
I] for use of the records in [Hutchins II] . . . is hereby . . .
(denied)". (3/23/05 Order). However, as stated above, this
restriction was never intended to be imposed.*fn2 Its
inclusion can be attributed to plaintiff's proposed order, which
became the March 23, 2005 Order, because it included the language
now in dispute. Consequently, for the sake of clarity, the Court
will modify the Order so that it more accurately states what
relief was denied plaintiff by striking the phrase "for use of
the records in Hutchins v. UPS, Docket No. 02-4274 and".
As for plaintiff's request to modify the Protective Order so
that he may see the Hutchins I confidential documents to
prepare for trial, the Court finds no error in Magistrate Judge
Hedges' determination that this request is premature. Currently,
defendant's motion for summary judgment to dismiss plaintiff's complaint is pending. If that
motion is granted, plaintiff's case will be dismissed and no
trial will occur. Given the possibility that this case may not go
to trial, the Court sees no good reason, and plaintiff provides
absolutely none, why the Court should modify the Protective Order
at this time. Therefore, plaintiff's appeal on this issue is
As for plaintiff's request to unseal all documents submitted in
conjunction with nondiscovery motions filed in Hutchins I, the
Court finds that plaintiff inappropriately raises this issue for
the first time on appeal. On the record before the Court, there
is no evidence this issue was ever raised before Magistrate Judge
Hedges. In fact, the March 23, 2005 Order includes no reference
whatsoever to unsealing all such documents in Hutchins I.
Further, as defendant correctly notes, any appeal on this issue
by plaintiff is untimely. The Protective Order was entered on
February 23, 2003. If plaintiff wanted to appeal that order, he
was required to file his appeal over two years ago. Therefore,
plaintiff's appeal on this issue is denied.
In sum, the March 23, 2005 Order is affirmed as modified above.
An appropriate Order accompanies this ...