United States District Court, D. Connecticut
In re Application of LUIS JAVIER MARTINEZ SAMPEDRO for an Pursuant to 28 U.S.C. § 1782 to Compel Discovery for Use in a Foreign Proceeding
RULING ON RESPONDENTS' RENEWED MOTION FOR A
PROTECTIVE ORDER (DOC. NO. 136)
M. Spector United States Magistrate Judge
with the Court's prior rulings is presumed. On December
10, 2018, the parties filed a Joint Motion for Protective
Order (Doc. No. 89) (the “Joint Protective
Order”). In their Joint Motion, the parties explain
that they “have agreed to the entry of a protective
order to protect confidential and/or proprietary information
that may be produced” in this proceeding, and that they
“agree that the nature of these proceedings and the
Court's prior rulings call for modifications to the
standing protective order that applies under Judge
Arterton's individual practice.” (Doc. No. 89 at
1). Based on the parties' representations that they
“agreed” to the contents of the Joint Protective
Order, the undersigned granted the Joint Motion for
Protective Order on January 2, 2019. (Doc. No. 108; see
also Doc. No. 135 at 10-11). The Joint Protective Order
provides, in relevant part, that “[i]nformation or
documents designated as ‘Confidential' shall not be
disclosed to any person, except: [t]he requesting party and
its attorneys providing advice or representation in
connection with any of the Proceedings, including but not
limited to counsel of record in the
Proceedings[.]” (Doc. No. 108 at 2).
January 9, 2019, Respondents Contrarian Capital Management,
LLC, Silver Point Capital, L.P., and David Regenato, filed an
Emergency Motion for Protective Order (Doc. No. 128)
explaining that David Jimenez Marquez
(“Jimenez”), the former general counsel of
Codere, “in fact is acting as an attorney for
Petitioner in both foreign proceedings.” (Doc. No. 128
at 2). In their motion, Respondents sought a protective order
to “prohibit [Jimenez] . . . from accessing information
deemed confidential under . . . the [Joint] Protective Order,
” and requiring “that all confidential
information provided to Jimenez be immediately returned to
counsel for Respondents.” (Doc. No. 128 at 2).
Following an on-the-record conference call on January 9,
2019, Respondents withdrew the motion “based on counsel
for Petitioner's representation that [Jimenez] will not
attend the deposition of David Regenato on January 10,
2019.” (Doc. No. 131 at 1). Respondents reserved their
right to renew the motion and seek other appropriate relief.
(Doc. No. 131 at 1).
January 16, 2019, Respondents filed this Renewed Motion for
Protective Order (Doc. No. 136), with memorandum in support
(Doc. No. 137). Petitioner filed a memorandum in opposition
to Respondents' Motion on February 6, 2019 (Doc. No.
147), and Respondents filed their reply on February 20, 2019
(Doc. No. 155). On February 22, 2019, this Motion was
referred to the undersigned. (Doc. No. 158).
reasons detailed below, Respondents' Renewed Motion for
Protective Order (Doc. No. 136) is DENIED.
argue that, because Jimenez was the general counsel of Codere
when Petitioner was terminated and commenced the pending
Spanish Litigation and ICC arbitration (collectively, the
“foreign proceedings”), he cannot properly serve
as Petitioner's counsel in the foreign proceedings due to
a conflict of interest. (See Doc. No. 137 at 10).
Respondents maintain that a protective order is necessary to
prevent Jimenez from “misusing Respondents'
confidential discovery in furtherance of a conflicted
representation.” (Doc. No. 137 at 10). Specifically,
Respondents claim that, “[a]bsent a protective order,
Jimenez would be able to use Respondents' confidential
discovery to advise and assist Petitioner in litigation
against Codere, his former client, on matters substantially
related to his former representation of Codere.”
Additionally, Respondents argue that a protective order is
necessary to prevent Respondents' confidential business
information from being disclosed improperly, and that there
are no compelling interests against issuance of a protective
order. (Doc. No. 137 at 9-12). Petitioner responds first that
this Court should decline to rule on this issue until the
Spanish court has ruled on whether Jimenez's
representation of Petitioner presents a conflict of interest.
(See Doc. No. 147 at 11-14). Petitioner argues also
that Respondents have provided this Court with no
justification for modifying the Joint Protective Order and
that Respondents have failed to establish both good cause for
the issuance of a protective order and a disqualifying
conflict of interest. (See Doc. No. 147 at 14-32).
Rule of Civil Procedure 26(c) provides that “[t]he
court may, for good cause, issue an order to protect a party
or person from annoyance, embarrassment, oppression, or undue
burden or expense[.]” Fed.R.Civ.P. 26(c). “Rule
26(c) confers broad discretion on the trial court to decide
when a protective order is appropriate and what degree of
protection is required.” Gomez v. Resurgent Capital
Servs., L.P., 129 F.Supp.3d 147, 152 (S.D.N.Y. 2015)
(internal quotation marks omitted). The requirement of
“good cause” is the “touchstone of the
court's power under Rule 26(c)[.]” Id. The
party seeking the protective order bears the burden of
showing good cause. See Id. at 152-53; see also
Nwachukwu v. Liberty Bank, No. 3:16-CV-704 (CSH), 2018
WL 2016854, at *2 (D. Conn. May 1, 2018) (citing
Penthouse Int'l, Ltd. v. Playboy Enters., 663
F.2d 371, 391 (2d Cir. 1981)).
Respondents' Motion does not specifically request that
the Court disqualify Jimenez from representing Petitioner,
disqualification of Jimenez would be the likely result of
this Court's issuance of the protective order that
Respondents seek. Disqualification of an attorney “is
called for only where an attorney's conduct tends to
taint the underlying trial . . . .” United States
v. Prevezon, 839 F.3d 227, 241 (2d Cir. 2016) (internal
quotation marks omitted). “One recognized form of taint
arises when an attorney places himself in a position where he
could use a client's privileged information against a
client.” Id. (quoting Hempstead Video,
Inc. v. Inc. Vill. of Valley Stream, 409 F.3d 127, 133
(2d Cir. 2005)).
the Joint Protective Order, which was drafted by all of the
parties in this action and presented to the Court as a
collective, agreed-upon request, allows a party's counsel
to review documents that have been designated as
“confidential.” (See Doc. No. 108 at 2).
Jimenez is acting as Petitioner's counsel in the foreign
proceedings and, therefore, under the Joint Protective Order,
is entitled to review the confidential documents that
Respondents have produced in this action. For Jimenez to be
prohibited from reviewing the confidential materials, the
Court would have to disqualify Jimenez from representing
Petitioner. The problem, however, is that Jimenez is a
foreign lawyer who is representing Petitioner in the
underlying foreign proceedings, which are taking place in
Spain. Whether this Magistrate Judge believes that grounds
for disqualifying Jimenez exist is irrelevant, as any
“trial taint” would occur in a foreign tribunal.
See Prevezon, 839 F.3d at 241. It is not the role of
this Court “to regulate the conduct of foreign counsel
in foreign proceedings that are not before [it].”
Coan v. Dunne, No. 3:15-CV-50 (JAM), 2019 WL 302674,
at *7 (D. Conn. Jan. 22, 2019). Therefore, the Spanish Court
should decide whether Jimenez may properly represent
Petitioner. Should the Spanish Court determine that Jimenez
may not act as Petitioner's counsel, the Joint Protective
Order, as written, would suffice to prevent Jimenez from
accessing the confidential materials. Respondents have not
shown that this Court has “some kind of free-ranging
international authority to enforce [Spanish] rules of
professional conduct against foreign counsel like
[Jimenez].” Id. Accordingly, Respondents
Motion must be denied.
foregoing reasons, Respondents' Renewed Motion for
Protective Order (Doc. No. 136) is DENIED.
not a Recommended Ruling. This is an order regarding
discovery which is reviewable pursuant to the “clearly
erroneous” statutory standard of review. See
28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); and D.
Conn. L. Civ. R. 72.2. As such, it is an order of the ...