“Pretrial orders of a magistrate under 636(b)(1)(A) are 16 reviewable under the ‘clearly erroneous and contrary to law’ standard; they are not 17 subject to de novo determination[.]”
How later courts described this case
- “Pretrial orders of a magistrate under 636(b)(1)(A) are 16 reviewable under the ‘clearly erroneous and contrary to law’ standard; they are not 17 subject to de novo determination[.]”
Written by the judges who cited it.
The opinion
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7 UNITED STATES DISTRICT COURT
8 SOUTHERN DISTRICT OF CALIFORNIA
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10 DON CLEVELAND, et al., Case No.: 19cv2141 JM (JLB)
11 Plaintiffs,
ORDER ON PLAINTIFFS’
12 v. OBJECTIONS TO MAGISTRATE
JUDGE’S AUGUST 19, 2021 ORDER
13 LUDWIG INSTITUTE FOR CANCER
RESEARCH LTD, et al.,
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Defendants.
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AND RELATED COUNTERCLAIM.
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19 Presently before the court are Plaintiffs’ Objections to Magistrate Judge
20 Burkhardt’s August 19, 2021 Order on Plaintiffs’ Motion to De-designate. (Doc. No.
21 96). Pursuant to Local Rule 7.1(d)(1), the court finds the matters presented appropriate
22 for resolution without oral argument. For the reasons set forth below, Plaintiffs’
23 objections are OVERRULED.
24 RELEVANT BACKGROUND
25 The underlying dispute arises from Defendants’ designation of documents as
26 “CONFIDENTIAL” or “CONFIDENTIAL – FOR COUNSEL ONLY” under the
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1 Protective Order. (Doc. No. 96-1 at 5). On June 4, 2021, Plaintiffs filed a motion to de-
2 designate. (Doc. No. 67-1). In their Motion, Plaintiffs sought to de-designate a large
3 percentage of documents Defendants had designated as “CONFIDENTIAL” or
4 “CONFIDENTIAL – FOR COUNSEL ONLY”—identified in Exhibit A to Plaintiffs’
5 Motion. (Doc. Nos. 67-1 at 9; 67-2).
6 On August 19, 2021, the Hon. Jill L. Burkhardt held a hearing via videoconference
7 on Plaintiffs’ Motion. (Doc. No. 92). At the hearing, Judge Burkhardt denied Plaintiffs’
8 Motion without prejudice. (Doc. No. 94 at 31). Plaintiffs object. (Doc. No. 96).
9 LEGAL STANDARD
10 Under Federal Rule of Civil Procedure 72(a), a magistrate judge’s ruling on a non-
11 dispositive matter is subject to reconsideration by the district judge if a party serves and
12 files objections to the order within fourteen days. Fed. R. Civ. P. 72(a). The district
13 judge “must consider timely objections and modify or set aside any part of the order that
14 is clearly erroneous or is contrary to law.” Id.; Grimes v. City & Cty. of S.F., 951 F.2d
15 236, 241 (9th Cir. 1991) (“Pretrial orders of a magistrate under 636(b)(1)(A) are
16 reviewable under the ‘clearly erroneous and contrary to law’ standard; they are not
17 subject to de novo determination[.]”) (quotations omitted).
18 With respect to non-dispositive discovery disputes, “the magistrate judge’s
19 decision” is “entitled to great deference by the district court.” United States v. Abonce-
20 Barrera, 257 F.3d 959, 969 (9th Cir. 2001). A magistrate judge’s ruling on discovery
21 issues is clearly erroneous only if the court is left with a “definite and firm conviction that
22 a mistake has been committed.” Burdick v. Burdick, 979 F.2d 1369, 1370 (9th Cir.
23 1992). A magistrate judge’s decision is “contrary to law” if “it applies an incorrect legal
24 standard, fails to consider an element of applicable standard, or fails to apply or
25 misapplies relevant statutes, case law, or rules of procedure.” Martin v. Loadholt,
26 No. 1:10-CV-00156-LJO-MJ, 2014 WL 3563312, at *1 (E.D. Cal. July 18, 2014). “The
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1 reviewing court may not simply substitute its judgment for that of the deciding court.”
2 Grimes, 951 F.2d at 241.
3 ANALYSIS
4 Plaintiffs object to Judge Burkhardt’s Order on two grounds. First, Plaintiffs
5 contend Judge Burkhardt failed to enforce the express terms of the Protective Order and
6 require both Defendants and their counsel to independently evaluate each document
7 designated as confidential to determine if such designation was made in good faith. (Doc
8 No. 96-1 at 11-12).
9 The court is unpersuaded. Here, Plaintiffs’ argument rests on Paragraph 4 of the
10 Protective Order, which provides that: “[a]ny party or non-party . . . may designate
11 documents or other information” as “CONFIDENTIAL” or “CONFIDENTIAL – FOR
12 COUNSEL ONLY” “only if the designating party or non-party and their counsel has an
13 articulable, good faith basis to believe that the documents” qualify for such protection.
14 (Doc. No. 45 at ¶¶ 4(a) and 4(b)).
15 The plain language of Paragraph 4 does not explicitly require a party and its
16 counsel to independently review every document designated as confidential in discovery.
17 The court does not read Paragraph 4 as delineating an exact procedure that must be
18 followed before a party designates a document as confidential. Instead, as Judge
19 Burkhardt reasonably concluded, Paragraph 4’s provisions are met provided the
20 designating party possesses an articulable, good faith basis for making its confidentiality
21 designation. (Doc. No. 94 at 12:21-13:2). The central import of Paragraph 4 rests on the
22 possession of an articulable, good-faith basis for designation—not on whether it is the
23 party, the party’s counsel, or both, that must make this determination. Judge Burkhardt’s
24 conclusion to this effect is neither clearly erroneous nor contrary to law.
25 Second, Plaintiffs contend Judge Burkhardt improperly shifted the burden to
26 Plaintiffs, as the non-designating party, to prove the absence of good cause to maintain
27 Defendants’ confidentiality designations. (Doc. No. 96-1 at 12-16). The court is
28 unpersuaded. In her Order, Judge Burkhardt correctly held the protective order operative
1 in this case is a “blanket protective order.” (Doc. No. 94 at 24:22-25:4). A blanket
2 protective order is one that is obtained “without making a particularized showing of good
3 cause with respect to any individual document.” Low v. Trump Univ., LLC,
4 No. 13-CV-02519-GPC-WVG, 2016 WL 4098195, at *4 (S.D. Cal. Aug. 2, 2016).
5 Judge Burkhardt also correctly acknowledged that even in blanket protective
6 orders, the burden of demonstrating good cause to maintain the confidentiality of
7 designated documents remains with the designating party. (Doc. No. 94 at 25:14-19); see
8 also Low, 2016 WL 4098195, at *4. Rather than shift the burden, Judge Burkhardt
9 reasonably held there was nothing in the record to suggest Defendants had abused the
10 designation process by not designating documents on a good-faith basis (Doc No. 94 at
11 27:11-6) and Defendants had met their initial burden of establishing good cause (id. at
12 29:2-4).
13 Notably, Judge Burkhardt based this conclusion, in part, on declarations
14 Defendants submitted outlining the methodology by which Defendants had designated
15 documents. Id. at 27:17-29:9. Judge Burkhardt was clearly entitled to credit these
16 declarations as evidence Defendants’ confidentiality designations were made in good
17 faith. Brady v. Grendene USA, Inc., No. 12-CV-00604-GPC-KSC, 2015 WL 5022298, at
18 *5 (S.D. Cal. Aug. 21, 2015). Judge Burkhardt was also clearly entitled to credit the fact
19 that despite challenging hundreds of documents—Plaintiffs could only identify one that
20 had been improperly designated. (Doc. No. 94 at 30:5-10).
21 Rather than improperly shifting the burden—as Plaintiffs suggest—Judge
22 Burkhardt’s Order properly held Plaintiffs to their challenge obligations under Paragraph
23 14 of the Protective Order. (Doc. Nos. 45 at ¶ 14; 94 at 31:4-13). Judge Burkhardt’s
24 ultimate conclusion that Plaintiffs could re-raise a more narrow dispute by challenging
25 specific documents or manageable categories of documents (after meeting and conferring
26 with Defendants in good faith)—is not clearly erroneous nor contrary to law. “[I]t is not
27 reasonable to expect Defendants to address thousands of documents in a single motion,
28 nor is it inherently improper for Defendants to have designated a large number of
1 ||documents as confidential.” O'Neil v. City & Cty. of San Francisco, No. 17-CV-07190-
2 2021 WL 1736809, at *4 (N.D. Cal. May 3, 2021); see Brady, No. 12-CV-00604-
3 || GPC-KSC, 2015 WL 5022298, at *7 (not clearly erroneous for magistrate judge to direct
4 ||a party to follow confidentiality challenge procedures set forth in protective order).
5 CONCLUSION
6 For the above reasons, IT IS HEREBY ORDERED that Plaintiffs’ Objections
7 || CECF No. 96) are OVERRULED and Magistrate Judge Burkhardt’s August 19, 2021
8 || Order (ECF No. 94) is AFFIRMED.
9 IT IS SO ORDERED.
10 || DATED: October 13, 2021 QO) ffs.
frted States District Judge
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