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Katherine Bryant, By and v. Thomas H. Milhorat

May 7, 2012

KATHERINE BRYANT, BY AND THROUGH HER PARENTS AND NATURAL GUARDIANS, APRIL BRYANT AND WAYNE BRYANT, INDIVIDUALLY, AND WAYNE BRYANT, INDIVIDUALLY, PLAINTIFFS,
v.
THOMAS H. MILHORAT, M.D., PAULO A. BOLOGNESE, M.D., MISAO NISHIKAWA, M.D., NORTH SHORE - LONG ISLAND JEWISH HEALTH SYSTEM INC., THE CHIARI INSTITUTE, HARVEY CUSHING INSTITUTES OF NEUROSCIENCE, AND CHANLAND ROONPRAPUNT, M.D., DEFENDANTS.



The opinion of the court was delivered by: Seybert, District Judge:

MEMORANDUM & ORDER

Pending before the Court are Plaintiffs' objections to a portion of Magistrate Judge A. Kathleen Tomlinson's October 5, 2011 discovery order (the "Discovery Ruling"). Specifically, Plaintiffs complain that the Discovery Ruling incorrectly denied their motion to compel Defendants to remove "confidential" designations from certain documents. For the following reasons, Plaintiffs' objections are overruled and the Discovery Ruling is affirmed.

BACKGROUND

The parties in these cases, which have been consolidated before Judge Tomlinson for discovery purposes only, entered into an umbrella confidentiality order (the "Confidentiality Order"). (See Docket Entries 178, 185.)*fn1 The

Confidentiality Order provides in pertinent part that:

If a party in good faith believes that Discovery Material designated as "Confidential" pursuant to this Confidentiality Agreement and Order was improperly or inappropriately so designated under the Federal Rules of Civil Procedure and applicable law, said party shall confer with the other parties in a good faith attempt to resolve the dispute. If the parties cannot resolve the dispute, the party seeking to maintain the material confidential shall, within a reasonable period of time, present the dispute to this Court by motion, or as otherwise permitted by this Court. This Court may then determine whether said Discovery Material should be considered "Confidential", and whether or not such designation should be removed. In the context of such an application, this Court will decide which party shall have the burden, if any, to maintain or disprove the appropriateness of the "Confidential" designation. No party shall be obligated to challenge the propriety of the "Confidential" designation of Discovery Material at the time of production, and a failure to promptly do so shall not, in and of itself, preclude a subsequent challenge as to the propriety of such a designation provided the challenge is made within a reasonable period under the circumstances.

(Confidentiality Order ¶ 20 (emphasis added).)

As is relevant here, Plaintiffs challenged the confidentiality designations that Defendants had given to certain documents. Plaintiffs requested that Defendants remove the designation from those materials, but Defendants did not respond. The parties discussed the issue with Judge Tomlinson during an October 5, 2011 status conference, and after ascertaining that the designations would not impact this litigation, Judge Tomlinson remarked as follows:

[C]onsidering the circumstances and the pressure on everybody here, with regard to the deadlines we're facing, I've heard argument which I would have heard that I had been looking at papers if they had come in, and I understand that that's the protocol called for in the confidentiality agreement based on what I've heard, I don't believe that there is a basis in this litigation to remove that designation. So that's my ruling. I'm not going to make them file a motion, all right?

(October 5, 2011 Hrg. Tr. ("Hrg. Tr.") 70.) She followed up with a minute order that stated, in relevant part:

I will not compel defendants to remove the confidentiality designations from certain documents which plaintiffs claim demonstrate that the defendants interfered with the peer-review process with respect to one of the articles that is central to this litigation. Plaintiffs have not demonstrated an appropriate basis for removing the designation. I am waiving the provision of the confidentiality stipulation and order which requires motion practice on this issue since I have heard argument from the parties today and have rendered a decision.

(October 5, 2011 Minute Order ¶ 7.)

DISCUSSION

Plaintiff argues that Judge Tomlinson erred by (1) burdening Plaintiffs with demonstrating a basis for removing the confidentiality designation (Pl. Br. 5); and (2) waiving motion practice in ...


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