United States District Court, D. Arizona
Honorable Eileen S. Willett United States Magistrate Judge.
before the Court are Defendant's Motion for Protective
Order (Doc. 38) and Plaintiff's Motion for Leave to File
Surreply to Defendant's Reply in Support of Motion for
Protective Order (Doc. 45). The Court will grant Plaintiff
leave to file a sur-reply as proposed. The Court also will
grant Defendant's Motion for Protective Order for good
Motion for Leave to File Surreply (Doc. 45)
the Federal Rules of Civil Procedure nor Local Rules of Civil
Procedure authorize the filing of a sur-reply. See
LRCiv 7.2 (b-d) (providing for the filing of a motion,
response, and reply); Fed.R.Civ.P. 7(b) (requiring requests
to the Court to be made by motion). Yet “[i]t is well
settled that new arguments cannot be made for the first time
in reply. This goes for new facts too.” Gold v.
Wolpert, 876 F.2d 1327, 1331 n.6 (7th Cir. 1989). To the
extent that a party raises a new argument or proffers new
evidence and information in a reply brief, that argument or
evidence is improper because the opposing party is deprived
of an opportunity to respond. See Tovar v. United States
Postal Service, 3 F.3d 1271, 1273 n.3 (9th Cir. 1993). A
court cannot consider new evidence provided in a reply when
the other party does not have an opportunity to respond to
the evidence. See Provenz v. Miller, 102 F.3d 1478,
1483 (9th Cir. 1996). Therefore, granting leave to file a
sur-reply is generally appropriate when a party raises new
issues or new evidence in a reply brief.
the Court finds that Defendant arguably has presented new
information in its Reply. Granting leave to file the
sur-reply proposed is appropriate as the sur-reply would be
helpful to the resolution of the pending Motion for
Protective Order (Doc. 38) and does not prejudice Defendant.
Defendant has addressed the substance of the proposed
sur-reply in its Response (Doc. 46). No. further briefing is
necessary. The Motion for Leave to File Surreply to
Defendant's Reply in Support of Motion for Protective
Order (Doc. 45) will be granted.
Motion for Protective Order (Doc. 38)
seeks to maintain the confidentiality of documents containing
proprietary information, security information regarding the
operation of the prison facility, and personal information
regarding current and former prisoners and employees of
TransCor. Counsel agree that the confidentiality of such
information is appropriate. However, Plaintiff objects to an
“Attorney Eyes Only” component to the proposed
protective order as it would prevent counsel from sharing
information with his client.
subject matter of this litigation involves obviously highly
confidential material. It is undisputed that documents
regarding the transportation of inmates between correctional
facilities, the personal information of correctional officers
and inmates, and proprietary information are highly
confidential. Unrestricted disclosure of this inherently
confidential information would negatively impact the safety
of others and the safe, secure daily operation of a
correctional facility, as well as the financial interests of
the public can gain access to litigation documents and
information produced during discovery unless the party
opposing disclosure shows ‘good cause' why a
protective order is necessary.” Phillips ex rel.
Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206,
1210 (9th Cir. 2002). Fed.R.Civ.P. 26 (c) allows
the Court to over-ride that presumption of public access and
issue a protective order when good cause is shown.
Specifically, the Court may craft an order “(A)
forbidding the disclosure or discovery; (B) specifying terms,
including time and place or the allocation of expenses, for
the disclosure or discovery; (C) prescribing a discovery
method other than the one selected by the party seeking
discovery; (D) forbidding inquiry into certain matters, or
limiting the scope of disclosure or discovery to certain
matters; . . . (G) requiring that a trade secret or other
confidential research, development or commercial information
not be revealed or be revealed only in a specified way
[.]” Fed.R.Civ.P. 26(c)(1).
party seeking the protective order bears the burden of
showing good cause. See San Jose Mercury News, Inc. v.
U.S. Dist. Ct., 187 F.3d 1096, 1102 (9th Cir.
1999) (holding movant must make a “particularized
showing of good cause with respect to any individual
document”). Good cause exists if a specific prejudice
or harm will result if no protective order is granted.
See Beckman Industries, Inc. v. Int'l Ins. Co.,
966 F.2d 470, 476 (9th Cir. 1992).
the parties agree that good cause exists for a protective
order to issue, and the Court so finds. The Court further
finds, based upon Plaintiff's criminal history, the
highly sensitive nature of the information contained in the
documents to be exchanged, and the safety and security of the
correctional facilities, including their employees and
inmates, that the proposed form of the protective order is
appropriate. Plaintiff is represented by experienced counsel.
An “Attorney's Eyes Only” provision will not
negatively impact Plaintiff's ability to fairly and
thoroughly litigate and present the issues in his case. The
Motion for Protective Order (Doc. 38) will be granted.
reasons set forth herein, IT IS ORDERED
granting Defendant's Motion for ...