The Trial Lawyers College v. Gerry Spences Trial Lawyers College at Thunderhead Ranch et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
__________________________________
THE TRIAL LAWYERS COLLEGE, a
nonprofit corporation,
Plaintiff and Counterclaim Defendant,
vs.
GERRY SPENCES TRIAL LAWYERS
COLLEGE AT THUNDERHEAD RANCH, a
nonprofit corporation, and GERALD L.
SPENCE, JOHN ZELBST, REX PARRIS,
JOSEPH H. LOW, KENT SPENCE, and
DANIEL AMBROSE, individuals, and
GERRY SPENCE METHOD AT
THUNDERHEAD RANCH, INC., a nonprofit
corporation,
Defendants,
and JOHN JOYCE,
Defendant, Counterclaim Plaintiff, and
Third-Party Plaintiff,
vs.
F WARRIORS,
Third-Party Defendant.
Case Number: 1:20-CV-00080-JMC-GJF
.
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FIFTH SUPPLEMENTAL DISCOVERY ORDER
AND LIMITED PROTECTIVE ORDER
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This Order relates to the transcript of the deposition of Defendant John Joyce and whether
any portion of that transcript contains “confidential” or “attorneys’ eyes only” (AEO) material as
defined in the Protective Order that has governed discovery in this case for two years. See ECF 91
(order filed September 30, 2020).
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I. BACKGROUND
On August 23, 2022, in accordance with Local Rule 37.1(b) and this Court’s procedure for
informal resolution of discovery disputes, TLC invoked the provision of the Protective Order that
permits a party to challenge the designation of any discovery material, including deposition
transcripts, as confidential or AEO information. See ECF 91 at ¶ 8. Specifically, TLC sought to
contest Defendant Joyce’s designation of the entire transcript of his deposition as both confidential
and AEO. TLC explained that it was seeking judicial intervention since its meet-and-confer
efforts to resolve the issue had proven unsuccessful. After counsel for TLC and Defendant Joyce
provided additional information pertaining to this issue, the Court held a recorded telephonic
discovery conference. See ECF 463 (minutes from conference held August 29, 2022). Based on
the parties’ written and oral submissions, the Court granted Defendant Joyce an opportunity to
specify the excerpts from the transcript that contain confidential/AEO information and further
identify the particular provisions in the Protective Order that characterize them as such.
On August 31, 2022, Defendant Joyce complied, identifying a total of six excerpts from
the 264-page deposition.1 For each excerpt, he included a purported justification as to why the
Protective Order should continue to extend protection over the material in question. Two days
later, with the Court’s permission, TLC explained how none of the excerpts contain material that
qualifies as “confidential information” under the Protective Order, much less AEO.
II. ANALYSIS
The Court has carefully reviewed the parties’ arguments submitted by electronic mail
before and after the discovery conference. The Court has also listened to the recordings of the
1 Specifically, Defendant Joyce identified as confidential the following page/line ranges: (1) 10:20–11:4; (2) 15:15–
18; (3) 23:9–27:7; (4) 29:12–31:1; (5) 100:7–103:15; and (6) 196:8–198:12.
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most recent discovery conference as well as the one held prior to Defendant Joyce’s deposition.
See ECF 357 (minutes from conference held May 6, 2022). The Court not only has read the
deposition transcript in its entirety but has pored over each of the excerpts to which Defendant
Joyce has referred the Court’s attention. The Court has also cross-referenced those excerpts to
the Protective Order to make its own independent assessment of whether (1) the material excerpted
qualifies for continued protection as “confidential information” and (2) if so, whether it is so
sensitive that it should continue to enjoy the heightened protection of being classified as AEO.
With one exception, the Court finds that the excerpts identified by Defendant Joyce do not
qualify as “confidential information” under the terms of the Protective Order. The lone exception
is the first excerpt, which encompasses page/line range 10:20–11:4. The Court considers that
excerpt to contain “medical information concerning any individual,” as used in ¶ 2(d) of the
Protective Order.2 For the last four excerpts, however, Defendant Joyce has not carried his burden
of showing that any information included in them qualifies as a “trade secret” or as “commercial
or financial information that [he] has maintained as confidential,” as those terms are used in ¶¶
2(b) and (c), respectively, of the Protective Order. Standing alone, Defendant Joyce’s abbreviated
and conclusory descriptions of excerpts 3–6 and their supposed linkage to the Protective Order fall
far short of the showing he needed to make to justify their designation as confidential. Nor does
the Court consider this to be a close question.3
2 Although Defendant Joyce also seeks continued designation of page 15, lines 15-18 as confidential medical
information, the Court disagrees. There is nothing in that excerpt that alerts the reader of the reason(s) why he
attended more than one law school.
3 None of the excerpts, including the one assessed by the Court to contain confidential information, merits continued
designation as AEO. Accordingly, this order removes any restriction on TLC’s counsel sharing the deposition
transcript with their client.
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III. LIMITED PROTECTIVE ORDER
Although the Court has decided that only one of the excerpts contains confidential
information under the Protective Order, the Court pursuant to the discretion endowed by Federal
Rule of Civil Procedure 26(c) will grant Defendant Joyce the following relief, to wit:
(1) The Court forbids TLC, its directors, its employee(s), and its counsel from sharing any
portion of Defendant Joyce’s deposition transcript with any person who is involved in
any way (e.g., counsel, witness, or investigator) in any of the other legal proceedings
(whether they be criminal, civil, or administrative) currently pending against him;
(2) To the extent TLC’s trial preparation requires sharing any portion of Defendant Joyce’s
deposition transcript with a third-party witness outside TLC’s control, the Court orders
TLC and its counsel to share with the witness only those portions of the deposition
transcript that are reasonably necessary to prepare the witness’s testimony; and
(3) To the extent TLC’s trial preparation requires sharing any portion of Defendant Joyce’s
deposition transcript with a third-party witness outside TLC’s control, the Court orders
TLC’s counsel to advise the witness in writing of the Court’s prohibition against
sharing any portion of the transcript with any person described in (1) above.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART
TLC’s challenge to Defendant Joyce’s designation of the subject deposition excerpts as containing
confidential or AEO information. Specifically, the Court DENIES the challenge as to the excerpt
found at page 10, lines 21-24, through page 11, lines 1-4 of the transcript, but GRANTS the
challenge in all other respects. In its discretion, however, the Court GRANTS limited protection
to the Joyce deposition transcript to the extent explained above.
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SO ORDERED.
________________________________________
THE HONORABLE GREGORY J. FOURATT
UNITED STATES MAGISTRATE JUDGE
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