Court Sanctions Party For Over-Designating Documents As Confidential

Parties often stipulate to protective orders under which a producing party is given the right to designate appropriate documents to be treated as "confidential." However, as the court held in Del Campo v. American Corrective Counseling Services, Inc., No. C-01-21151 JW (PVT) (N.D. Cal. Nov. 5, 2007), the designating party must bear the responsibility for determining which documents truly are appropriate for confidential treatment.

The particular order at issue in Del Campo included a specific provision requiring each designating party to “take care to limit any such designations to specific material that qualifies under the appropriate standards,” and noted that indiscriminate designations “expose the Designating Party to possible sanctions.” The court found that the defendants produced thousands of documents with a blanket confidentiality designation in violation of the order, including obviously public documents such as law review articles and Web pages, and then failed to support their designations when challenged. The court ordered defendants to pay plaintiff’s attorney’s fees for challenging the over-designation.

The protective order here made the court's job a little easier because the court needed to look no further than the wording of the order to find violations. It seems likely, however, that even if a protective order lacked an express term concerning over-designation, a court easily could find violation of a protective order that merely permitted designation as "confidential" if the documents challenged clearly were not appropriate for confidential treatment.


Filing Voluntary Dismissal Starts Clock For One-Year Refiling Rule Immediately

The Seventh Circuit has issued an opinion that once again illustrates the dangers of waiting until the last moment under a statute of limitations.

In Jenkins v. Village of Maywood, No. 06-3411, 2007 WL 3239198 (7th Cir. Nov. 5, 2007), plaintiff filed a joint stipulation for voluntary dismissal of his Section 1983 action in federal court pursuant to Fed. R. Civ. P. 41(a)(1)(ii) on March 9, 2004. The court prepared an order of dismissal on the same day, and the clerk entered it on the docket on March 15, 2004.

One year later, on March 15, 2005, plaintiff essentially re-filed the case in federal court. The statute of limitations for Section 1983 actions is derived from the appropriate state statute and its corresponding tolling rules. In this case, Illinois law applied and plaintiff's new case would have been out of time but for the existence of a special tolling statute. Under 735 ILCS 5/13-217, a plaintiff who voluntarily dismisses a case may commence the action again within one year or within the remaining limitations period, whichever is greater. Plaintiff believed that his filing within one year of the dismissal was timely because the Illinois Code of Civil Procedure specifies that a voluntary dismissal is not effective for purposes of the one-year tolling rule until the clerk has entered the order onto the docket.

The Seventh Circuit disagreed, holding that the date that plaintiff filed the stipulation controlled instead. That is because federal, not state, procedural law governs a federal case even if the applicable statute of limitations is derived from state law. Under Fed. R. Civ. P. 41(a), no order is needed to effect a voluntary dismissal. It specifically states that "an action may be dismissed by the plaintiff without order of court ... by filing a stipulation of dismissal signed by all parties who have appeared in the action." Thus, the dismissal became effective as a matter of applicable law when plaintiff filed the stipulation on March 9, 2004, not when the clerk entered it on the docket the following week.

The moral of the story: Don't file a complaint on what you think is the last possible day. Courts might find that you did not count correctly, or that the "mailbox rule" or other tolling rule did not work the way you thought it did, and you will have left no margin for error.