United States District Court, S.D. Indiana, Terre Haute Division
JOSHUA B. CRISSEN, Plaintiff,
VINOD C. GUPTA, SATYABALA V. GUPTA, WIPER CORPORATION, and VIVEK V. GUPTA, Defendants.
JANE MAGNUS-STINSON, District Judge.
Presently pending before the Court is a Motion for Protective Order to Keep Confidential Certain Documents Produced by Banco Popular North America, Wells Fargo, and Wiper Corporation, filed by Defendants Vinod Gupta, Satyabala Gupta, and Wiper Corporation ("Wiper") (collectively, "the Gupta Defendants"). [Filing No. 268.]
The pending motion stems from yet another discovery dispute in this highly antagonistic case. To consider the motion, it is necessary to set forth some background facts. On June 19, 2013, on Plaintiff Joshua Crissen's motion, [Filing No. 45], the Court entered a Protective Order which allowed the parties to designate certain documents that are "non-public confidential documents, proprietary trade information or documents that raise a privacy concern" as "Protected Material, " [Filing No. 47 at 1]. Under the Protective Order, any party to the litigation can "designate information or material disclosed, produced, or filed by that party or a person in the course of the action as Protected Material...." [Filing No. 47 at 2.] The Protective Order provides that "[m]aterial designated as Protected Material shall be used or disclosed solely in the captioned litigation, and in accordance with the provisions of this Agreed Protective Order, and such Protected Material shall not be used in any other litigation or for any other purpose without further order of this Court." [Filing No. 47 at 2-3.] Access to Protected Material is limited to certain individuals, including the parties, counsel of record for the parties, certain experts, and any other person the disclosing or producing party agrees to in writing. [Filing No. 47 at 3.] However, the Protective Order specifically prohibits Barrett Rochman (one of Vinod Gupta's main business competitors, and the father of Mr. Crissen's counsel, Jesse Rochman) and Jesse Rochman from viewing documents marked as Protected Material. [Filing No. 47 at 3; Filing No. 148 at 6-7.]
The Protective Order further provides that if a party or "any interested member of the public" wishes to object to the designation of any material as Protected Material, they must do so in writing. [Filing No. 47 at 4.] Within thirty days of receipt of an objection, the party seeking protection must file a motion with the Court for a ruling that the information or material should be treated as Protected Material. [Filing No. 47 at 4-5.]
In the pending motion, the Gupta Defendants request that the Court determine whether documents marked as Protected Material during discovery in this case are properly designated so. The documents at issue were produced by Banco Popular North America ("BPNA") and Wells Fargo pursuant to subpoenas duces tecum,  and by Wiper in response to Mr. Crissen's Requests for Production. [Filing No. 269 at 3.] The Gupta Defendants designated all of the documents as Protected Material under the Protective Order, and believe that BPNA similarly designated at least some of the documents it produced. [Filing No. 269 at 3-4.] The documents fall into seven categories: (1) income tax returns of Wiper and V Gupta Inc.; (2) checks written by Vinod Gupta, and bank statements, showing personal income tax payments to the Internal Revenue Service ("IRS") and the State of New York; (3) correspondence between Vinod Gupta and BPNA, and checking account statements, relating to confidential financial audits; (4) Business Loan Agreements; (5) documents containing Mr. Gupta's bank password; (6) documents produced by BPNA, Wells Fargo, and Wiper that are subject to the Court's November 7, 2013 Joint Entry on Plaintiff's Motion to Compel and Defendant Vinod C. Gupta's Motion for Protective Order, [Filing No. 148], as modified by the Court's April 14, 2014 Order, [Filing No. 229]; and (7) other deposition exhibits challenged by Mr. Crissen.
The Court notes at the outset that at times Mr. Crissen appears to confuse the concept of privileged or confidential documents with those that are marked as Protected Material. Mr. Crissen requested that the Court enter the Protective Order, [Filing No. 45], and so presumably was aware that it allowed designation of documents as Protected Material even if that material does not include confidential information. The Court's rulings detailed below do not do anything out of the ordinary - the Court is merely enforcing the terms of the Protective Order that Mr. Crissen himself submitted. Additionally, Mr. Crissen also conflates the prohibition of discovery of Protected Material with the prohibition of disclosure of Protected Material to third parties. Mr. Crissen already has the documents at issue and is free to use them in this litigation - he just cannot disclose them to parties outside of this litigation. Given that it is hard to conceive of a legitimate use for Protected Material outside of this litigation, the Court is having difficulty discerning why Mr. Crissen is fighting so hard to remove the Protected Material designation from the documents at issue. That being said, the Court will address each category of documents in turn.
1. Income Tax Returns of Wiper and V Gupta Inc.
The Gupta Defendants argue that copies of income tax returns of Wiper and V Gupta Inc., which were produced by BPNA, contain confidential information including "employer identification numbers, social security numbers, and gross financial information for Wiper...and V Gupta, Inc." [Filing No. 269 at 6.] They assert that the tax returns of V Gupta Inc. - "a company that bids at Florida tax sales" and is not a party to the lawsuit - are not relevant and should "be given protected status since they contain non-public information of a non-party that is not vital or even relevant to Crissen's claims in this action." [Filing No. 269 at 6-7.] The Gupta Defendants also argue that Wiper's corporate income tax returns are not relevant to the issues in this litigation. [Filing No. 269 at 7-8.]
In his response, Mr. Crissen "consents to allowing [Wiper's] income tax returns to remain confidential, " [Filing No. 272 at 3], leaving only V Gupta Inc.'s tax returns at issue. As to those returns, Mr. Crissen does not dispute that they contain confidential information, and does not explain how they are relevant to the litigation. [Filing No. 272 at 3.] Instead, he argues only that the Gupta Defendants do not have standing to request a protective order regarding the returns, and that only V Gupta Inc. may do so. [Filing No. 272 at 3.]
In reply, the Gupta Defendants assert that they have standing to seek a protective order for V Gupta Inc.'s tax returns, and note that V Gupta Inc. has not received any notice that BPNA produced the tax returns, so to argue that it is the only entity that can move for a protective order "simply flies in the face of logic and fairness." [Filing No. 274 at 4-5.]
The Court notes at the outset that the Protective Order provides that "[a]ny party in the Crissen Litigation may, in good faith, designate information or material disclosed, produced, or filed by that party or a person in the course of the action as Protected Material...." [Filing No. 47 at 2 (emphasis added).] In other words, the Gupta Defendants may designate documents produced by other entities - even non-parties such as V Gupta Inc. - as Protected Material. The Protective Order then contemplates that "the party seeking protection shall, by motion, apply to the Court for a ruling" regarding whether the material shall be treated as Protected Material. [Filing No. 47 at 4-5.] So, under the Protective Order, a party can mark documents produced by non-parties as Protected Material, and then can move the Court to keep those documents so designated. The Court further notes that Mr. Crissen submitted the Protective Order for the Court's approval, advocating for all provisions it included. [Filing No. 45.]
As for case law, Mr. Crissen has not pointed to any courts within this District or the Seventh Circuit that have found that only the entity whose documents are produced has standing to request a protective order relating to those documents. The Seventh Circuit case he cites for the proposition that "[t]he law in this circuit is well-established that only V Gupta Inc. may seek a protective order for its own benefit and it may only do so though intervening in this action, " [Filing No. 272 at 3], does not stand for that proposition at all. In Bond v. Uteras , 585 F.3d 1061 (7th Cir. 2009), the district court had granted a journalist's motion to intervene for the purpose of lifting a protective order so he could gain access to confidential documents in the case. Id. at 1065. The motion to intervene was made after the case had settled and just before it was dismissed with prejudice. Id. The Seventh Circuit vacated the district court's order, finding that the petition to intervene should have been dismissed for lack of standing because "[t]he controversy originally supporting the court's jurisdiction no longer existed at the time the court acted on [the journalist's] petition; the parties had settled, the case was dismissed with prejudice, and neither [party] asked the court to revisit and modify the terms of the protective order postjudgment." Id. The case had nothing whatsoever to do with whether a party has "standing" to seek protection for a document produced by a non-party. And as the Gupta Defendants point out, this would be a particularly odd limitation absent a requirement that the non-party receive notice that the documents have been produced in the first instance.
The Court finds that the tax returns of V Gupta Inc. that were produced by BPNA are properly designated as Protected Material. Mr. Crissen does not challenge the Gupta Defendants' assertion that the documents contain non-public and confidential information and are not relevant to the litigation. Accordingly, the Court finds that the V Gupta Inc. tax returns produced by BPNA - along ...