United States District Court, D. Massachusetts
ERIK B. CHERDAK, Plaintiff,
KOKO FITCLUB, LLC and KOKO FITNESS, INC., Defendants.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTION FOR A PROTECTIVE ORDER
JUDITH GAIL DEIN, Magistrate Judge.
This matter is before the court on "Defendants Koko FitClub, LLC and Koko Fitness, Inc.'s Motion for Entry of Protective Order" (Docket No. 113). In connection with this motion, the defendants submitted a proposed order. (Docket No. 113-1). The plaintiff filed a lengthy alternative proposed order, which did not identify the areas of disagreement. (Docket No. 131 at Ex. 1). A hearing was held on March 17, 2015, at which time the plaintiff was ordered to submit a redlined copy identifying his suggested changes to the defendants' proposed protective order. (Docket No. 150). He did so on March 24, 2015 (Docket No. 153 at Ex. B), along with another brief (Docket No. 153) and a new "Proposed Supplemental Order" relating to the sealing of the transcript of the hearing on March 17, 2015. (Docket No. 153 at Ex. A). As ordered by the court at the March 17th hearing, on March 31, 2015 the defendants filed a "Response to Plaintiff's Changes to Proposed Protective Order." (Docket No. 154). In connection therewith, the defendants filed a modified proposed Protective Order incorporating some, but not all, of the plaintiff's suggestions. (Docket No. 154 at Ex. A). On April 6, 2015, the plaintiff filed a "Suplemental [sic] Brief in Response to Defendants' Submission of a Newly Proposed Protective Order." (Docket No. 156).
After consideration of the numerous pleadings and oral argument, the Defendants' Motion for Entry of Protective Order (Docket No. 113) is ALLOWED, and this court has entered a Protective Order in the form proposed by defendants on March 31, i.e., Docket No. 154 at Ex. A. Herein, the court will address what it considers to be the major issues in dispute and the reasons for adopting the defendants' version. No attempt has been made to address all of the numerous issues raised in the voluminous pleadings.
1. Proposed Supplemental Order.
The court declines to enter the Proposed Supplemental Order relating to the sealing of the transcript of the hearing on March 17, 2015. (Docket No. 153 at Ex. A). In order to expedite the hearing, the court sealed the transcript so that plaintiff could pursue whatever arguments he felt were appropriate without being concerned about the absence of a formal protective order. Contrary to the plaintiff's suggestion, however, this court did not make any rulings as to the confidential nature of the "Confidential Core Order and its Exhibits." The court simply recognized that the plaintiff believed the Order and Exhibits were confidential. The transcript is sealed and shall remain so until further order of the court. No supplemental order is necessary.
2. Status of Disqualification Motions.
The plaintiff's repeated argument is that an extraordinary level of protection is necessary because, in his view, defense counsel has disclosed in this litigation, confidential information relating to another case. This argument formed the basis for two motions to disqualify defense counsel, which were denied by the District Judge, and is the basis for another motion to disqualify which is pending before the District Judge. The charge is denied by defense counsel. This court is not tasked with ruling on the motion to disqualify, and nothing herein shall be deemed to constitute a ruling on that motion. This court does state, however, that nothing that was disclosed during the March 17th hearing caused this court concern about defense counsel's willingness or ability to abide by the terms of the Protective Order entered herewith. Moreover, the fact that the defendants proposed a form of protective order in this case agreed to by the plaintiff in other litigation does not, based on the record presently before me, constitute a breach of any Protective Order obligations.
3. Confidential Information.
The parties agree as to what constitutes "confi-dential" information and who should have access to such information. The defendants have addressed plaintiff's concerns and have made it clear that he (the plaintiff) has access to such "confidential" information.
4. Confidential - Attorneys' Eyes Only.
A complicating factor in determining the appropriate levels of protection in the instant case is the fact that the plaintiff, himself, is a competitor of the defendants, and the fact that the plaintiff has elected to proceed pro se, even though he is not presently a member in good standing of any Bar, and is not admitted to practice before any court. Therefore, as the defendants have noted, he is not subject to the same ethical rules and obligations as practicing attorneys.
The parties disagree as to who should have access to highly confidential documents designated "confidential - attorneys' eyes only." Defendants propose that only outside counsel and experts have access to such information. Since plaintiff does not have an outside counsel, this designation would limit the dissemination of such documents to outside experts for the plaintiff. Plaintiff proposes that he be given access to such information, ...