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Lakes v. Bath And Body Works, LLC

United States District Court, E.D. California

February 23, 2018




         Introduction and Summary

         In ECF No. 42, Defendant, Bath and Body Works (BBW) has moved for clarification or, in the alternative, reconsideration of the undersigned's Discovery Order, ECF No. 40. The court heard the parties at telephonic hearing on February 22, 2018; appearances are on the record.

         For the reasons set forth below, the motion for clarification is granted, and further clarification is set forth below. A required notification to third party complainants for disclosure of information regarding their complaints/communications against BBW for its three-wick candles is also set forth. There is no cause or need to reconsider the Order itself.


         In the Discovery Order, the undersigned ordered, among other items, production of information provided or created regarding complaints, or other communications, from third party consumers of BBW three-wick candles. The Order also required the parties to work out a notification form for third parties to approve, or not, contact by plaintiff's counsel regarding disclosure of their information. At page 5-6 of the Order, the parties were directed:

At oral argument the parties agreed that privacy concerns could be accommodated. The proper procedure here is for Defendant to contact each relevant complainant, as described here, with an explanation that this lawsuit exists, that it alleges facts similar to those found in the recipient's complaint, and that Plaintiff here has requested contact information and Defendant seeks the consumer's agreement that the information may be provided. To avoid any future argument about the scope of the inquiry made by Defendant, the court will require that Defendant draft such correspondence, submit it to the Plaintiff for review and agreement as to the scope of the content, and transmit the correspondence no later than 10 days from the date of this Order.4 (footnote omitted) The consumer notice should provide the consumer with a check-off as to whether the information may be transmitted or, on the contrary, must be withheld and should include self-addressed, stamped envelope for the consumer to respond and encourage that it be returned within a day or two from receipt.

         BBW asserts that the Order is unclear concerning whether the disclosure notice should require the third party complainants to affirmatively waive their privacy rights before information concerning those third parties in BBW's possession can be disseminated to plaintiff's counsel despite the court's previous findings that such information should be disclosed. See Requests for Production 6, 12, and perhaps others. BBW does not oppose plaintiff's counsel contact with third parties per se, but believes that the notification should include an affirmative waiver of disclosure by the third parties of private, identifying information held by BBW as well as contact permission. The argument continues that if a third party does not affirmatively approve such an information disclosure after being notified, no such disclosure should take place. In other words, plaintiff's contact of third parties may well be “in the blind” because of an after the fact of disclosure “veto” by the third parties. BBW also points to the burdensome nature of having to redact private, identifying information in the absence of such an affirmative waiver by the third parties. On the other hand, plaintiff believes that the court's order was clear-the only approval from third party complainants required was the ability of counsel to make direct contact with them, and a failure to respond to the notification was to be considered an approval of contact. The document disclosure order of the court was separate from the contact notification procedure.


         The court need not delve much into the weeds of the most appropriate rule of civil procedure for reconsideration, Fed. R. Civ. P 60's “final order” reconsideration or under a court's inherent authority to reconsider an order it has issued pending final adjudication of the case. See Kaseberg v. Conaco LLC, 2017 WL 1020455 *4 (S.D. Cal. 2017), finding that Rule 60 applies only to case dispositive orders, but recognizing the inherent authority of the court to reconsider interlocutory order under somewhat strict conditions, citing Amaral v. Connell, 102 F.3d 1494, 1515 (9th Cir. 1996). See also Frazier v Redding Police Dept., 2012 WL 5868573 (E.D. Cal. 2012, BBW has also requested clarification of the previous discovery order, and if wholesale reconsideration of previous orders is lawful, clarifications must be even more so. The undersigned proceeds to clarify the previous discovery order.

         The asserted ambiguity resulted from the court's requirement that BBW disclose third party information, but then perhaps, seemingly requiring the third party's affirmative approval for such disclosure as opposed to mere contact with third parties. The “information” referenced in the quoted paragraph above was “contact information, ” but the undersigned can understand that BBW may have interpreted it otherwise. The previous order was made in recognition of the Protective Order, ECF No.38, but this recognition was not made express or operative in the discovery order. This Clarification Order can reference the requirements of the Protective Order and allay any further confusion. BBW was not erroneous in asking for clarification.

         The court's Order requiring disclosure of third party information regarding three-wick candle incidents for Requests No. 6, 12, and perhaps others, stands, [1] and as discussed at hearing, it shall be made forthwith. However, the court makes clear that such information is to be disclosed pursuant to the provisions of the Protective Order, i.e., confidential information is not to be disseminated outside the confines of the Protective Order absent a subsequent court order. That is, any third party information disclosure which may impact third party privacy interests shall be marked confidential and treated accordingly under the provisions of the Protective Order. The undersigned makes clear, and therefore orders, that no public filing of third party confidential information be made in this case, unless the information is redacted of personal identifying information such as Social Security number, medical records which disclose the identity of the patient, financial information linked with a specific individual, and the like. If filing of the unredacted information is necessary, the filing party shall seek to file such information under seal.

         Of course, if a third party, after contact by plaintiff's counsel, has affirmatively consented to the filing of unredacted information, no filing under seal need be made.[2]

         Thus, BBW need not redact identifying information in documents which touch upon third party privacy prior to disclosure to plaintiff's counsel, but need only identify that a document is confidential pursuant to ...

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