Not for Publication in West's Federal Reporter 

United States Court of Appeals 

For the First Circuit 

No. 15-1536 

MICHAEL A. ROWE, 

Plaintiff, Appellee, 

v. 

LIBERTY MUTUAL GROUP, INC., 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW HAMPSHIRE 

[Hon. Joseph Laplante, U.S. District Judge] 

Before 

Torruella, Lynch, and Kayatta, 

Circuit Judges. 

David J. Kerman on brief for defendant-appellant. 

Michael A. Rowe pro se. 

February 12, 2016 
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KAYATTA, Circuit Judge. This case returns to this court 

from an earlier remand instructing the district court to reconsider 

its order effectively lifting, post-judgment, a "Discovery 

Confidentiality Agreement and Protective Order" ("Protective 

Order") entered into by plaintiff-appellee Michael Rowe ("Rowe") 

and defendant-appellant Liberty Mutual ("Liberty"). Finding no 

abuse of discretion in the district court's reconsideration of its 

ruling on remand, we affirm. 

I. Background 

A. The Protective Order 

Under the Protective Order, Liberty was able to 

designate as "Confidential" documents produced by it in the 

litigation that Liberty in good faith contended met certain 

criteria, such as being subject to the attorney-client or work 

product privileges. In responding to discovery requests by Rowe, 

Liberty so designated various documents to which Rowe, as a former 

Liberty employee, had already been privy. 

Under paragraph 6 of the Protective Order, Rowe retained 

the right to challenge such a designation at any time. The agreedupon procedure under the Protective Order for challenging 

confidentiality designations consisted of three steps: first, the 

party objecting to the designation must serve on the designating 

party a written objection to the designation, describing "with 

particularly the documents or information in question . . . and 
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the grounds for objection;" second, the designating party must 

respond in writing to the objection within ten days, stating "with 

particularity the grounds for asserting that the document or 

information is Confidential;" and third, if a dispute to a 

Confidential designation cannot be resolved by the parties' good 

faith efforts, the party proposing the designation must "present 

the dispute to the Court by a formal motion for an order regarding 

the challenged designation." 

B. Rowe's Challenge to the Protective Order 

As his own claim against Liberty confronted what turned 

out to be a successful motion for summary judgment, Rowe challenged 

Liberty's designations by serving on Liberty a writing stating 

that he was "objecting to the confidentiality designations of all 

evidence referenced by either Liberty Mutual or Rowe in any and 

all Pleadings filed by either of the parties in this litigation to 

date." This challenge applied not only to the excerpts of these 

documents currently on the docket, but to the "entirety" of any 

such documents. Liberty thereupon communicated to Rowe Liberty's 

position that Rowe's blanket challenge to its designations was 

inadequate under the Protective Order because, Liberty argued, 

Rowe did not describe "with particularity the documents or 

information in question and . . . state the grounds for objection." 

Rowe apparently maintained that he need do no more because, inter 
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alia, he claimed that the documents were not even subject to the 

Protective Order. 

Liberty brought the dispute to the district court, 

seeking a supplemental protective order declaring that it was too 

late for Rowe to challenge confidentiality designations (because 

the documents could have no use in the litigation at that stage) 

and declaring, in the alternative, that Rowe had failed to 

challenge the designations with the required particularity. 

The district court disagreed with Liberty's suggestion 

that "there is presently no legitimate use that [Rowe] can make of 

the confidential material," and thus rejected Liberty's timing 

argument. Procedural Order, Rowe v. Liberty Mut. Grp., Inc., No. 

11-cv-366-JL at 3 (D.N.H. Feb. 27, 2014), ECF No. 138. As for the 

Protective Order, the district court decided not to require Rowe 

to provide a more particularized challenge to Liberty's 

designations. The court further observed that some of the 

documents in question with which the district court was already 

familiar were clearly not privileged. Id. at 5–6. 

The court therefore ordered Liberty to file a motion 

"(1) listing the documents over which it wishes to preserve its 

confidentiality designations; (2) attaching each of those 

documents, under seal; and (3) explaining the basis of each of 

those designations, with reference to additional evidentiary 

materials or legal authority, if necessary." Id. at 6–7. 
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Rejecting Liberty's request for more time, the district court 

required that Liberty file its papers in two weeks, likely assuming 

that Liberty would not have pressed its confidentiality 

designations in good faith without having already analyzed each 

document to confirm its classification as privileged. 

Liberty thereafter filed what essentially amounted to a 

bare bones privilege log, with a memorandum discussing various 

legal principles pertinent to general categories of 

confidentiality claims. Rowe objected, claiming this was 

inadequate, as it gave no indication why the specific documents 

were privileged. The court allowed Liberty to file a reply 

memorandum, in which Liberty included, for the first time, a 

document-by-document explanation of a limited subset of documents 

it believed should be subject to the Protective Order as 

privileged. The court noted that although Liberty's reply 

memorandum may have "provide[d] the information necessary for this 

court to rule on Liberty Mutual's designations as to a much smaller 

set of documents", Liberty had waited too long to provide such 

information by presenting it for the first time in a reply memo.1 

 

1 The district court appears to have relied on its Local Rules to 

buttress its point that reply memos are not to be used to advance 

arguments that should have been in the opening memo. Oddly, the 

Local Rules for the District of New Hampshire, although they have 

such a requirement regarding dispositive motions, are silent on 

the point in connection with nondispositive motions. Compare N.H. 

L.R. 7.1(e)(1) and N.H. L.R. 7.1(e)(2). In any event, Liberty 
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Summary Order, Rowe v. Liberty Mut. Grp., Inc., No. 11-cv-366-JL 

at 9–10 (D.N.H. Apr. 29, 2014), ECF No. 160. The court ultimately 

ordered that all the designations were unsustained, allowing Rowe 

to deal with the documents free of the strictures of the Protective 

Order. 

C. Liberty's Prior Appeal 

On Liberty's appeal, we vacated the district court's 

ruling. Rowe v. Liberty Mut. Grp., Inc., No. 14-1475 (1st Cir. 

Feb. 17, 2015), ECF No. 174. We regarded the district court's 

actions as a modification of the Protective Order, which is only 

warranted when the district court finds that there has been "a 

significant change in circumstances." Id. at 2 (quoting Pub. 

Citizen v. Liggett Grp., Inc., 858 F.2d 775, 790 (1st Cir. 1988). 

In deciding whether to modify such an order, district courts must 

weigh a number of factors. See Griffith v. Univ. Hosp., L.L.C., 

249 F.3d 658, 661 (7th Cir. 2001); Poliquin v. Garden Way, Inc., 

989 F.2d 527, 535 (1st Cir. 1993); 8A Charles Alan Wright & Arthur 

R. Miller, Federal Practice and Procedure § 2044.1 (3d ed., online 

edition updated Sept. 2014). 

 

does not contest the district court's interpretation of local 

briefing requirements. 
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D. Order on Remand 

On remand, the district court issued a careful and 

informative opinion explaining that, in effect, its only 

modification of the Protective Order was to relieve Rowe from his 

arguable obligation to provide a more particularized challenge to 

Liberty's designations. Order on Remand, Rowe v. Liberty Mut. 

Grp., Inc., No. 11-cv-366-JL (D.N.H. Apr. 28, 2015), ECF No. 176. 

Otherwise, all it did was require Liberty, in compliance with 

paragraph 6 of the Protective Order, to present the dispute to the 

court by a formal motion for an order regarding the challenged 

designation. Id. at 2. Thus, the district court's order was more 

in the nature of an application of the Protective Order rather 

than a substantive modification. Id. 

Training on the very limited modification of the 

Protective Order implicit in the Procedural Order, the district 

court examined the factors and authorities as we instructed. In 

so doing, the district court noted that the Protective Order was 

the type of "blanket protective order" that was "particularly 

subject to later modification." Id. at 13–14 (quoting Pub. 

Citizen, 858 F.2d at 790). The Protective Order--and the district 

court--also provided Liberty with an opportunity to demonstrate 

why any particular document should remain confidential. 

Importantly, the district court also noted that because the 

Protective Order allowed any designation to be challenged at any 
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time, and placed the burden of proof on Liberty just as if there 

were no Protective Order, Liberty could not have relied on any 

expectation that its documents would remain confidential without 

Liberty having to establish an entitlement to such treatment. Id. 

at 15–16. The district court further questioned the reasonableness 

of Liberty's reliance on the Protective Order, because "umbrella 

orders" of this type are "likely to be found to provide a less 

forceful basis for reliance than a more particularized 

order . . . ." Id. (quoting Pub. Citizen, 858 F.2d at 279–80). 

As we ordered, the district court also took a fresh look 

at whether the confidentiality designation should be overborne 

(or, rather, whether Liberty carried its burden of showing that 

the documents Liberty designated as confidential were entitled to 

protection under the Protective Order). In reaffirming its prior 

ruling, the district court relied on Liberty's failure to timely 

provide the proof necessary to show, for each challenged document, 

that it was privileged. 

II. Analysis 

We review district court rulings on procedural orders 

for abuse of discretion. Poliquin, 989 F.2d at 535. We have 

reviewed Liberty's motion and its list of documents. While the 

list likely sufficed as a privilege log to accompany a document 

production, see Fed. R. Civ. P. 26(b)(5), neither the list nor the 

motion provided the district court with any feasible means of 
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understanding why each document is privileged. There was no 

affidavit explaining who is a lawyer, who is a proper client 

representative, and why the communication is properly within the 

scope of the privilege. Instead, Liberty basically filed a memo 

setting forth general factors for assessing claims of privilege, 

and then let the district court go through 2,000 pages trying to 

figure out how these factors applied to each document.2 While 

categorical treatment of voluminous documents can sometimes 

suffice, (e.g., "emails from general counsel to senior manager 

limited to subject of X and retained in confidence as confirmed in 

affidavit of Y"), here the district court did not abuse its 

discretion in finding a failure to prove that the documents were 

privileged. 

Importantly, this is not a situation in which the court 

first held a document to be privileged, and then later reversed 

itself. Rather, the court at most tweaked and foreseeably 

supplemented the procedure for implementing the dispute resolution 

procedures under the Protective Order. Not requiring a plaintiff, 

who bore no burden of persuasion, to make a list of every document 

 

2 As noted by the district court in its Order on Remand, Liberty 

"made much of the fact that, following its initial submission in 

support of its designations, it filed a reply memorandum making a 

more specific showing as to particular documents." Order on Remand 

at 8. In this reply, however, Liberty itself stated that it 

"continues to assert that the detailed information accompanying 

its initial submission supports preserving the confidentiality of 

all materials submitted," that is, all 2,000-plus pages. 
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when he was challenging them all on the same ground caused no 

prejudice to Liberty. And Liberty can hardly complain that the 

district court spelled out in advance what Liberty need establish 

in its motion to prevail. That the court left it to Liberty to 

determine what evidence would be necessary to carry its burden did 

not change the protective order, and seems appropriate on such a 

straightforward matter. 

III. Conclusion 

Finding no abuse of discretion, we affirm the district court's 

order on remand.