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Southwell v. Mortgage Investors Corporation of Ohio, Inc.

United States District Court, W.D. Washington, Seattle

September 3, 2014

JOESEPH SOUTHWELL and JERRY BLAND, Plaintiffs,
v.
MORTGAGE INVESTORS, CORPORATION OF OHIO, INC., Defendant.

ORDER ON MOTION TO ENFORCE PROTECTIVE ORDER AND FOR AN ORDER TO SHOW CAUSE WHY PLAINTIFFS' COUNSEL SHOULD NOT BE HELD IN CONTEMPT

MARSHA J. PECHMAN, Chief District Judge.

THIS MATTER comes before the Court on Defendant's Motion to Enforce Protective Order and for an Order to Show Cause Why Plaintiffs' Counsel Should Not Be Held in Contempt. (Dkt. No. 150.) Having reviewed the Motion, Plaintiffs' Response (Dkt. No. 170), Defendant's Reply (Dkt. No. 175), and all related papers, and having heard oral argument on August 13, 2014, the Court hereby GRANTS the Motion in part and denies it in part and ORDERS Plaintiffs' counsel held in contempt.

Background

The Parties in this Telephone Consumer Protection Act case stipulated to a protective order on September 30, 2013, and the Court entered it on October 3. (Dkt. No. 29.) The Protective Order covers the following "confidential" categories of information:

a) Documents evidencing, comprising, or discussing MIC's training, marketing, guidelines, manuals, instructions, or policies regarding its business;
b) Telephone calling records or other records reflecting the calling activity at issue;
c) Records reflecting personal information of existing and potential customers;
d) Records reflecting personal information of MIC's employees;
e) Documents containing MIC's financial information; [...]
f) Documents evidencing, comprising, or discussing MIC's proprietary software or internal systems; [and]
g) Plaintiffs' personal information, including, but not limited to, Plaintiffs' financial records and medical records[.]

(Dkt. No. 29 at 2.) In accordance with Local Rule 5(g), the parties also agreed to a procedure to be followed when one party wished to challenge the designation of a document as confidential. (See Dkt. No. 29 at 6.)

After Plaintiffs' counsel recognized that one of the named Plaintiffs lacked standing on one of his claims because his number was not registered on the National Do Not Call Registry, Plaintiffs asked the Court for leave to amend the complaint to add an additional plaintiff, Kelly Ott. (See Dkt. No. 56 at 2.) Because the motion was not timely, the Court denied the motion. (Dkt. No. 90.) Within a few weeks, Plaintiffs' counsel then filed a separate action, also against Defendant MIC, in Oregon on behalf of Mr. Ott. See Ott v. Mortg. Investors Corp., No. 14-645 (D. Or. 2014).

Defendant now argues that some of the allegations in the District of Oregon complaint are derived from documents and deposition testimony designated confidential in this action and used without undergoing the agreed procedure in the Protective Order for challenging such designations. (Dkt. No. 150 at 7.) Although Defendant initially complained about a wide variety of alleged violations, Defendant now concedes that the allegations concerning MIC's use of an automatic telephone dialing system (ATDS) are available in the public record filed in this case, as is the information regarding the use of MIC's Do Not Call lists in Paragraph 35. (See Ott Compl., Dkt. No. 151-2 at Ex. B, ΒΆΒΆ 27, 19, 35.) Plaintiffs' counsel acknowledge that there is no public record source for Paragraphs 43, 46, 55, and 63, and have agreed to remove those facts from the Oregon complaint, but argue they should not be held in contempt because the facts about the number of calls MIC made to their own clients are not properly designated confidential, the violation was merely "technical, " and the violation did not undermine the purpose of the protective order. (See Dkt. No. 170 at 11-13.) The Parties continue to dispute whether information exists in the public record for the paragraphs in which individual defendants Mr. ...


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