The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
Knight Civil Action No. 15-CV-01808
Versus Judge S. Maurice Hicks, Jr
Knight et al Magistrate Judge Carol B Whitehurst
MEMORANDUM ORDER
Before the Court are several related motions: (1) a Motion For Protective
Order And Order For Costs filed by Knight Oil Tools, LLC and HMC Leasing LLC
(collectively “KOT”) [Rec. Doc. 118], non-parties in the above captioned lawsuit,
Plaintiff, Bryan Knight’s Opposition [Rec. Doc. 122], Defendant, Mark Knight’s
Opposition [Rec. Doc. 136], and a Reply filed by KOT [Rec. Doc. 138]; (2)
Defendant, Mark Knight’s Motion To Quash And Motion For Protective Order [Rec.
Doc. 135] and Plaintiff’s Opposition [Rec. Doc. 143] (3) a Motion To Consolidate
Hearing Dates filed by KOT [Rec. Doc. 137]; and, (4) a Motion To Strike Motion
For Protective Order filed by Plaintiff, Bryan Knight [Rec. Doc. 139] and Opposition
filed by Defendant Mark Knight [Rec. Doc. 142].
1. KOT’s Motion For Protective Order
KOT contends it was served with subpoenas by Plaintiff, Bryan Knight, to
produce “personal financial and confidential commercial business records.” KOT
further contends that while it is prepared to produce hundreds of documents, it will
not do so without a Protective Order. KOT asserts that because the parties cannot
agree to such an order, it moves the Court to allow it to use the Protective Order
attached to the motion as “Exhibit C.” R. 118-4. KOT also seeks an order of
reimbursement for any costs incurred in acquiring any software licenses for
responding to the subpoenas. In the alternative, KOT seeks an in camera review of
the records it must produce to determine if they fall within the realm of being
commercial and personal confidential and financial in nature.
In his opposition, Plaintiff contends that Mark Knight and his co-defendants
extensively utilized KOT monies, resources, and employees in the execution of the
scheme that forms the basis of this lawsuit. Specifically, Plaintiff states that
KOT unwittingly paid for the magnetic boxes used to plant drugs on
Plaintiff’s vehicle, paid Defendant Russell Manual monies for his on
the clock and off the clock activities related to the scheme, paid for his
illicit monies for his role in the scheme, was a source of information
(phone records) utilized by Heath Knight Billeaud in connection with
the scheme, and even provided the “safe house” where defendants
regularly met throughout the scheme....
Plaintiff further contends that the Protective Order attached to KOT’s motion is
“onerous” in that it applies to “every single document requested” and requires that
anyone presented with the protected documents (i.e. a witness) sign the Protective
Order, making them subject to liability for any breach thereof. Plaintiff notes that
any financial information of defendant, Mark Knight, would be accessible to
Plaintiff as a shareholder outside of this litigation. He states that Mark Knight
received a similar subpoena and has not filed a motion to quash. Thus, he asserts
KOT has failed to show the need for such a Protective Order. In the alternative, KOT
requests that the Court perform an in camera review of the requested documents to
determine if any are “worthy of a protective order” and if so, determine whether or
not the Protective Order is overly burdensome on the parties, jurors, witnesses and
the Court.
In its Reply, KOT reiterates the reasons for ruling provided in its motion. It
specifically notes that Plaintiff has not opposed the request for all costs associated
with the software licenses and computer work necessary in order to respond to the
production requests by Plaintiff.
2. Defendant Mark Knights Motion For Protective Order
Defendant, Mark Knight, objects to the subpoenas issued to KOT and submits
that any documents ultimately produced in response should be protected by a
Protective Order. Specifically, Defendant moves the Court to quash the subpoenas
as to “non-relevant, privileged, sensitive and confidential information and further, to
restrict the overbroad scope of certain requests that may include requests for
documents of potential relevance to viable claims of this litigation, but exceed the
relevant time period and/or fail to describe what is sought with reasonable
particularity, and therefore, include privilege and/or non-relevant items.” Defendant
contends that any documents ultimately produced should be governed by a
protective order, as proposed by KOT, prohibiting the disclosure or dissemination
of the documents and information to anyone outside of this litigation.
Plaintiff opposes Defendant’s motion arguing that it is “extremely untimely”
as Plaintiff served the subject subpoenas on KOT April 16, 2019 and responses
were due on April 29, 2019.
3. Motion To Consolidate
The Court will grant KOT’s motion to consolidate the hearing of all pending
motions.
4. Motion To Strike
Plaintiff, Bryan Knight, contends that the Court should strike Defendant’s
motion because it is untimely. Motions to strike are governed by Rule 12(f), which
authorizes a court to “order stricken from any pleading any insufficient defense or
any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f).
“Motions to strike are disfavored and infrequently granted.” U.S. v. Cushman &
Wakefield, Inc., 275 F. Supp.2d 763, 767 (N.D. Tex. 2002) (citing Augustus v. Board
of Public Instruction of Escambia County, Florida, 306 F.2d 862, 868 (5th Cir.
1962)). As the Fifth Circuit has noted:
[p]artly because of the practical difficulty of deciding cases without
a factual record it is well established that the action of striking a
pleading should be sparingly used by the courts. * * * It is a drastic
remedy to be resorted to only when required for the purpose of justice.
* * * The motion to strike should be granted only when the pleading to
be stricken has no possible relation to the controversy.
Augustus, 306 F.2d at 868.
In this case, Defendant’s motion basically duplicates KOT’s motion. The
Court previously ordered the parties to confer in a Rule 37 Conference, R. 134, and
therefore has not yet ruled on KOT’s motion. As the Court will consolidate the
hearing of the pending motions, the Court will also consider Defendant’s motion.
Rule 26(c) provides that the Court “may, for good cause,” protect a party from
“annoyance, embarrassment, oppression, or undue burden or expense” by issuing an
order “forbidding inquiry into certain matters, or limiting the scope of disclosure or
discovery to certain matters.” Fed. R. Civ. Proc. 26(c)(1)(D). To satisfy “good
cause,” “[t]he burden is upon the movant to show the necessity of its issuance, which
contemplates a particular and specific demonstration of fact as distinguished from
stereotyped and conclusory statements.” In re Terra Int'l, Inc., 134 F.3d 302, 306
(5th Cir. 1998).
The Protective Order in this case provides for documents to be produced that
include “Confidential, Commercial Information that should be protected against
disclosure and/or use by other parties outside the confines of this case.” The Court
finds this protection is sufficient to alleviate concerns that any Confidential,
Commercial Information will not be used in any other litigation or for any purpose
other than by the parties in the above captioned action.
The Court accepts the terms of the Protective Order with the following
amended language in paragraph VIII, page 5 and paragraph IX, page 5-6. R. 118-4,
138-5:
The party proposing to file any discovery containing Confidential,
Commercial Information shall contact the party designating the
document as confidential and request permission to file the discovery
as unsealed in the public record. Said permission shall not be
unreasonably denied. In the event that such permission is denied, leave
of court must be obtained by the party who seeks to file the confidential
evidence before any document is filed under seal.
Accordingly,
IT IS ORDERED that the Motion For Protective Order And Order For Costs
filed by Knight Oil Tools, LLC and HMC Leasing LLC [Rec. Docs. 118] is
GRANTED.
IT IS FURTHER ORDERED that the Motion To Quash and Motion For
Protective Order filed by Defendant Mark Knight [Rec. Doc. 135] is GRANTED
IN PART as to the Protective Order and DENIED IN PART as to the motion to
quash the subpoena.
IT IS FURTHER ORDERED that the Motion To Consolidate Hearing Dates
filed by Knight Oil Tools, LLC and HMC Leasing LLC [Rec. Doc. 137] is
GRANTED.
IT IS FURTHER ORDERED that the Motion To Strike [Rec. Doc. 139]
filed by Plaintiff Bryan Knight is DENIED.
THUS DONE AND SIGNED at Lafayette, Louisiana on this 17" day of
September, 2019.
CAROL B. WHITEHURST
UNITED STATES MAGISTRATE JUDGE