IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ASSISTMED, INC., §

 §

Plaintiff- §

counterdefendant, §

 § Civil Action No. 3:05-CV-0880-D

VS. §

 §

CONCEPTUAL HEALTH SOLUTIONS, §

INC. and MICHAEL FLORIMBI, §

 §

Defendants- §

counterplaintiffs, §

 §

and §

 §

RAUL KIVATINETZ, §

 §

Counterdefendant. §

MEMORANDUM OPINION

 AND ORDER 

Plaintiff-counterdefendant AssistMed, Inc. (“AssistMed”)

objects to the magistrate judge’s January 11, 2006 order granting

in part and denying in part its December 20, 2005 motion to

overrule objections, compel discovery responses, and for extension

of time to designate expert witnesses. AssistMed’s objection

illustrates the importance of adhering to the requirement that an

appeal from a magistrate judge’s order in a nondispositive matter

must, at a minimum, identify the ruling being challenged, specify

the standard of review, and explain why the decision in question is

reversible under that standard. In this instance, the court is

left largely to guess at what AssistMed contends is the standard of

review. Significantly, in the context of a magistrate judge’s

 

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pretrial discovery ruling, which in most respects is governed by an

abuse of discretion standard, AssistMed’s objection never once

cites that standard. The magistrate judge’s order is affirmed. 

I

AssistMed sues defendants-counterplaintiffs Conceptual Health

Solutions, Inc. (“CHS”) and Michael Florimbi (“Florimbi”) alleging

claims for fraud and breach of contract in connection with a

License Agreement under which CHS was to develop medical records

software. AssistMed alleges that the software was to be developed

on the basis of the Mayo Vocabulary Processor (“MVP”), an existing

software tool or engine. It asserts that defendants falsely

represented that the MVP engine was already developed, complete,

and capable of performing indexing, archiving, and retrieving

medical data. AssistMed served discovery on defendants requesting

copies of the MVP software and other materials. It maintains that

the content and capabilities of the MVP software are relevant and

central to its claims, and that it is contractually entitled to

receive copies of the MVP. Defendants objected, contending that

the MVP software and other materials are confidential and/or

proprietary trade secrets and that CHS had terminated the License

Agreement. AssistMed filed on December 20, 2005 a motion to

overrule objections, compel discovery responses, and for extension

of time to designate expert witnesses. The court referred the

motion to the magistrate judge, who granted the motion in part and

 

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denied it in part. As pertinent here, in some respects she denied

all requested discovery (some denials without prejudice), and in

others she compelled discovery, but on a modified and limited

basis. AssistMed filed an amended objection to the magistrate

judge’s order on February 13, 2006. It maintains that it is

entitled to the discovery it seeks and that restrictions in the

License Agreement on its disclosure or transfer of the MVP, and a

protective order entered in this case, are sufficient to insulate

defendants from harm arising from production of the MVP or any

other materials in connection with this lawsuit. AssistMed asks

the court to reverse the magistrate judge’s order and compel

defendants to provide all copies of the MVP product (subject to the

protective order) and all other materials that AssistMed seeks but

that the magistrate judge declined to compel defendants to produce.

II

This court has frequently set out the standard for reviewing

a decision of a magistrate judge in a nondispositive matter. The

appeal is governed by Fed. R. Civ. P. 72(a), which provides that

the court “shall modify or set aside any portion of the magistrate

judge’s order found to be clearly erroneous or contrary to law.”

Id. “‘The ‘clearly erroneous’ standard applies to the factual

components of the magistrate judge’s decision.’” Lahr v. Fulbright

& Jaworski, L.L.P., 164 F.R.D. 204, 208 (N.D. Tex. 1996)

(Fitzwater, J.) (quoting Smith v. Smith, 154 F.R.D. 661, 665 (N.D.

 

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Tex. 1994) (Fitzwater, J.)). “‘The district court may not disturb

a factual finding of the magistrate judge unless, although there is

evidence to support it, the reviewing court is left with the

definite and firm conviction that a mistake has been committed.’”

Id. (quoting Smith, 154 F.R.D. at 665) (internal quotation marks

omitted). “‘If a magistrate judge’s account of the evidence is

plausible in light of the record viewed in its entirety, a district

judge may not reverse it.’” Id. (quoting Smith, 154 F.R.D. at 665)

(internal quotation marks omitted). The legal conclusions of the

magistrate judge are reviewable de novo, and the district judge

“reverses if the magistrate judge erred in some respect in her

legal conclusions.” Id. “[T]he abuse of discretion standard

governs review of ‘that vast area of . . . choice that remains to

the [magistrate judge] who has properly applied the law to fact

findings that are not clearly erroneous.’” Id. (quoting Smith, 154

F.R.D. at 665) (alteration and ellipsis in original).

The court has also repeatedly advised appealing parties what

is necessary to challenge a magistrate judge’s order in a

nondispositive matter. “When a party appeals a magistrate judge’s

order, he must demonstrate how the order is reversible under the

applicable standard of review——de novo for error of law, clear

error for fact findings, or abuse of discretion for discretionary

matters.” Jefferson-Pilot Life Ins. Co. v. Bellows, 2003 WL

21501904, at *1 (N.D. Tex. June 24, 2003) (Fitzwater, J.). “This

 

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1In defendants’ brief, they do address the standard of review.

See Ds. Br. 4-5.

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means that, at a minimum, the party must identify the ruling being

challenged, specify the standard of review, and explain why the

decision in question is reversible under that standard.” Librado

v. M.S. Carriers, Inc., 2004 WL 583602, at *4, 2004 U.S. Dist.

LEXIS 10817, at *13 (N.D. Tex. Mar. 23, 2004) (Fitzwater, J.)

(emphasis added). The court has reiterated this minimum

requirement in decisions since Librado. See, e.g., InternetAd

Sys., LLC v. ESPN, Inc., 2004 U.S. Dist. LEXIS 20393, at *9 (N.D.

Tex. Oct. 8, 2004) (Fitzwater, J.); Hoskins v. Kaufman Indep. Sch.

Dist., 2004 WL 1283958, at *2, 2004 U.S. Dist. LEXIS 10665, at *6-

*7 (N.D. Tex. June 9, 2004) (Fitzwater, J.). 

AssistMed has made no attempt to specify the standard of

review and explain why the magistrate judge’s decision is

reversible under that standard.1

 For example, it is settled that

“[t]he district court has broad discretion in discovery matters and

its rulings will be reversed only on an abuse of that discretion.”

Scott v. Monsanto Co., 868 F.2d 786, 793 (5th Cir. 1989) (citing

Eastway Gen. Hosp. v. Eastway Women's Clinic, Inc., 737 F.2d 503,

505 (5th Cir. 1984)). Yet not once in AssistMed’s 16-page

objection does it use the term “abuse of discretion” much less

address the magistrate judge’s decision under that standard.

Instead, it simply posits that the magistrate judge erred in some

 

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respect, without asserting explicitly whether she did so as a

matter of law, clearly erred in her fact findings, or abused her

discretion. In some instances, it does not even assert that the

magistrate judge committed error; it posits that her decision was

“improper.” See, e.g., P. Br. 8. Although this failure would of

itself be sufficient to reject AssistMed’s objection by summary

order for failing to comply with its minimum obligations on appeal,

given the significance AssistMed attaches to the discovery the

magistrate judge has declined to compel defendants to produce, the

court has attempted to identify those instances in which AssistMed

has in some manner identified reversible error. But this

deficiency has contributed to, if not caused, AssistMed’s inability

to demonstrate that the magistrate judge’s order should be

reversed.

III

Preliminarily, AssistMed complains about the procedural

framework that the magistrate judge established for deciding the

motion to overrule objections and compel discovery responses. The

magistrate judge ordered that defendants could file a response to

the motion but that AssistMed could not file a reply brief.

As noted, AssistMed does not discuss the applicable standard

of review. It maintains that the procedural framework the

magistrate judge established was “fundamentally flawed.” P. Br. 5.

The standard of review that applies to a magistrate judge’s

 

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2Of course, in an appropriate case the decision could also be

reviewed for legal error (for example, if the magistrate judge

based the decision on a legally erroneous view of who had the

burden on an issue).

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decision concerning whether to allow a reply brief is normally

governed by an abuse of discretion standard.2 Here, the magistrate

judge did not abuse her discretion in precluding AssistMed from

filing a reply brief, if for no other reason than because she

convened an oral hearing at which AssistMed was able to present the

arguments it would have made in a written reply brief. 

IV

AssistMed makes three general arguments in support of its

objection, each of which is addressed to the following groups of

discovery requests: Nos. 2, 4, and 6, 22-25, and 11, 12, and 26.

It contends the magistrate judge erred in characterizing and

treating the discovery information as trade secrets and denying or

limiting production on that basis; the magistrate judge erred in

characterizing and treating the discovery information as

proprietary and confidential and denying or limiting production on

that basis; and the magistrate judge’s order is erroneous to the

extent it denied or limited discovery on other grounds, including

relevance.

A

AssistMed maintains that the magistrate judge erred in

characterizing and treating the discovery information as trade

 

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3

Although it advances several supporting contentions based on

defendants’ alleged failure to meet their burden under Texas law of

establishing that the requested information is a trade secret,

proprietary, or confidential, AssistMed posits only these

assertions concerning the magistrate judge’s decision: because of

the magistrate judge’s incorrect and flawed conclusion that

AssistMed does not dispute the trade secret, proprietary, or

confidential status of all information, she did not analyze whether

any matters are in fact trade secrets, proprietary, or

confidential; the magistrate judge concluded that harm had been

shown because of a purportedly pending patent application and

because of AssistMed’s offers to acquire CHS, but her order does

not explain how the pending patent application presents any harm,

and AssistMed’s counsel has attempted unsuccessfully to locate a

record of such an application; the magistrate judge apparently

concluded that an offer to purchase a company makes the offeror a

competitor per se, but this conclusion does not necessarily follow,

and defendants presented no proof that any of AssistMed’s products

or services competes with defendants’ products or services; and the

magistrate judge erred in failing to analyze whether a Rule

26(c)(7) order could avoid the purported harm to defendants.

AssistMed has failed to demonstrate that the magistrate judge

abused her discretion on any of these grounds or that she clearly

erred in her factual findings.

4

Rule 26(c)(7) states:

Upon motion by a party . . . and for good

cause shown, the court . . . may make any

order which justice requires to protect a

party or person from annoyance, embarrassment,

oppression, or undue burden or expense,

including one or more of the following: 

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secrets and denying or limiting production on that basis.3

1

Concerning Requests Nos. 2, 4, and 6, AssistMed argues that,

although defendants did not establish that the software that is the

subject of these requests are trade secrets, the magistrate judge

erred in concluding that defendants had established harm by

production of the software and in concluding that a Rule 26(c)(7)4

 

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. . . 

(7) that a trade secret or other confidential

research, development, or commercial

information not be revealed or be revealed

only in a designated way . . . .

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protective order would not alleviate any purported harm.

This court reviews for abuse of discretion the magistrate

judge’s decision regarding the adequacy of a Rule 26(c) protective

order. See Scott, 868 F.2d at 792 (citing Sanders v. Shell Oil

Co., 678 F.2d 614, 618 (5th Cir. 1982)). “[D]iscovery orders by

the trial court are rarely reversed for an abuse of discretion.”

Id. (citing Sanders, 678 F.2d at 618). AssistMed has not shown

that the magistrate judge abused her discretion in concluding that

defendants would be harmed and that a Rule 26(c)(7) protective

order would be inadequate to ameliorate the harm.

AssistMed contends the magistrate judge erred in her order

regarding Requests Nos. 2, 4, and 6 in reciting that the request is

“modified and limited” because the order is vague. This argument

does not establish a basis to conclude that the magistrate judge

abused her discretion.

Concerning Requests Nos. 4 and 6, AssistMed argues that the

magistrate judge erred insofar as her order finds or presupposes

that the License Agreement was terminated, contending that the

question whether it was terminated is a central issue in the case

and that any limitation of discovery on that basis is “improper” in

 

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a discovery dispute and premature. AssistMed has failed to show an

abuse of discretion.

Under Rule 26(b)(1), 

[p]arties may obtain discovery regarding any

matter, not privileged, that is relevant to

the claim or defense of any party . . . . For

good cause, the court may order discovery of

any matter relevant to the subject matter

involved in the action. Relevant information

need not be admissible at the trial if the

discovery appears reasonably calculated to

lead to the discovery of admissible evidence.

To establish that the magistrate judge abused her discretion,

AssistMed must show that she erred as a matter of law or clearly

erred in her factual findings in restricting production to versions

of the software programs, modifications, changes, or fixes in

effect before December 2004, when CHS purportedly terminated the

License Agreement. It is not enough simply to assert that the

question whether the License Agreement has been terminated is a

central issue that is in dispute, since the magistrate judge is

empowered to preclude discovery that is not relevant to a claim or

defense of any party. In other words, if the magistrate judge has

determined that discovery is irrelevant, it is not enough on appeal

to maintain that it is relevant. The appealing party must

demonstrate that the magistrate judge committed legal error in

making her relevance determination or did so based on clearly

erroneous fact findings. AssistMed has not met this burden.

 

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2

AssistMed challenges the magistrate judge’s order concerning

Requests Nos. 22-25, contending that she erred in treating the

information sought as trade secrets. It reasons that the evidence

defendants cited from the Florimbi affidavit did not use the phrase

“trade secrets” or address the relevant factors for establishing

that something is a trade secret. With respect to Request No. 22,

AssistMed objects to the limitation that defendants produce

agreements “concerning” the MVP technology because there is no

basis to find that the agreements are trade secrets. It argues

that the limitation is “too restrictive” and has no legal basis.

AssistMed objects to the magistrate judge’s denial of Requests Nos.

23-25 on the ground that there is no basis to determine that the

matters are trade secrets and that a proper Rule 26(c)(7) order

would avoid any harm to CHS that might result from production.

Although AssistMed does not identify the standard of review,

it may be arguing that the magistrate judge clearly erred in

finding that the information in question is a trade secret.

AssistMed has not shown that the magistrate judge’s account of the

evidence is implausible in light of the record viewed in its

entirety. This court is not left with the definite and firm

conviction that a mistake has been committed. This same conclusion

pertains to AssistMed’s contention concerning the limitation that

the magistrate judge placed on production in response to Request

 

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5Moreover, as the court explains infra at § IV(C)(3), because

the magistrate judge denied discovery concerning Requests Nos. 23,

24, and 25 without prejudice, AssistMed can still seek such

discovery. It has not established that the delay incurred in doing

so will prejudice it in conducting other discovery or in preparing

for trial, and it has therefore failed to show that the order

should be disturbed on this basis.

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No. 22, i.e., to agreements “concerning” the MVP technology. Nor

has AssistMed shown that the magistrate judge abused her discretion

in declining to order production under the terms of a Rule 26(c)(7)

order.5

3

AssistMed asserts that the magistrate judge erred in treating

the information sought in Requests Nos. 11, 12, and 26 as trade

secrets and in analyzing the requests under the framework she

followed. It maintains that even if the matters are trade secrets,

defendants failed to present evidence of harm that could not be

alleviated by a Rule 26(c)(7) order. AssistMed posits that the

magistrate judge could have imposed an appropriate confidentiality

order and, by refusing to do so, “erred and violated the broad,

liberal discovery contemplated by the discovery rules.” P. Br. 10.

The court cannot determine the standard of review on which

AssistMed relies. The best the court can determine from the

wording of the arguments is that the clearly erroneous and abuse of

discretion standards apply. AssistMed has not demonstrated clear

error or an abuse of discretion on any of these grounds.

 

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B

AssistMed next challenges the magistrate judge’s order on the

grounds that she erred in characterizing and treating the discovery

information as proprietary and confidential and denying or limiting

production on that basis.

1

As a threshold matter, to the extent AssistMed’s contentions

are largely the same as, or are adopted from, earlier portions of

its objection, see, e.g., id., or AssistMed does not clearly

identify the applicable standard of review and demonstrate how the

magistrate judge erred under that standard, the court rejects the

arguments for substantially the reasons already explained supra in

§ IV(A).

2

AssistMed objects to the magistrate judge’s decision

concerning Requests Nos. 2, 4, and 6 on the grounds that a proper

Rule 26(c)(7) order would have satisfactorily addressed any

concerns arising from producing the materials and that the

magistrate judge erred in concluding that defendants had

established harm and that a protective order would not alleviate

any purported harm. AssistMed has shown neither an abuse of

discretion (which, in fact, it does not argue) nor clearly

erroneous factual findings.

 

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3

As to Requests Nos. 22-25, AssistMed argues that defendants

did not meet their burden of establishing that agreements and

communications between CHS and Johns Hopkins University (“JHU”)

were confidential or proprietary. It maintains that, assuming that

such agreements or communications reference or contain matters that

are subject to the Mutual Non-Disclosure Agreement between CHS and

JHU, the magistrate judge’s order limiting discovery of agreements

to those concerning MVP technology and denying discovery of any

communications is overbroad, and any harm could be cured with an

appropriate confidentiality order. AssistMed asserts that the

magistrate judge erred in denying discovery concerning production

of software provided to JHU (the subject of Request No. 22) and the

documentation process (the subject of Request No. 25) because

defendants did not show that the documentation process is

confidential information. It argues that defendants did not

establish that the software provided to JHU was confidential, apart

from the parties’ agreement to make it so, and that any harm could

be cured by an appropriate confidentiality order.

As before, AssistMed does not specify the standard of review

and explain why the magistrate judge’s decision is reversible under

that standard. Based on the arguments presented, it appears that

the court should assess whether the magistrate judge abused her

discretion or clearly erred in making her decisions concerning

 

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Requests Nos. 22-25. AssistMed has shown neither an abuse of

discretion nor clearly erroneous fact findings.

4

AssistMed objects to the magistrate judge’s denial of

discovery of the Technology License Contract between Mayo

Foundation (“Mayo”) and CHS, requested by Request No. 11,

contending she “erred” in denying discovery. P. Br. 13. It argues

that defendants opposed production on the ground that the terms of

the contract are confidential, supporting this assertion by citing

the affidavit of Timothy D. Argo (“Argo”). AssistMed maintains

that the Technology License Contract itself contemplates only that

CHS will not disclose the terms of the contract, and another

provision states that, if a person seeks to compel disclosure, the

disclosing party will notify the other so that it can seek a

protective order, another appropriate remedy, or waive compliance

with the contractual provisions. It contends that, although Argo

stated that Mayo Medical Ventures (“MMV”) did not waive the

contractual provisions, he did not say what Mayo’s position is,

Mayo did not seek a protective order, and Mayo cannot protect

otherwise discoverable information by agreeing with another

contracting party not to disclose it. AssistMed posits that Argo’s

concern about the number of licenses MMV enters into each year can

be protected by a confidentiality order.

Because AssistMed does not specify the standard of review and

 

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explain why the magistrate judge’s decision is reversible under

that standard, the court cannot determine how to assess its

arguments. Evaluating the magistrate judge’s decision for abuse of

discretion or for clear error, the court holds that AssistMed has

not made the required showing.

5

Concerning Requests Nos. 12 and 26, AssistMed objects to the

magistrate judge’s order, contending she “erred” in limiting

discovery under Request No. 12, given defendants’ failure to refer

to evidence to support the assertion of confidential or proprietary

communications. P. Br. 13. As to Request No. 26, it argues that

she “erred” in denying discovery of communications under the

framework of her January 11, 2006 order because defendants offered

no argument or citation to evidence that the communications are

confidential or proprietary. Id. at 14. Absent argument under the

applicable standard of review and an explanation of why the

magistrate judge’s decision is reversible under that standard, the

court evaluates the magistrate judge’s decision for abuse of

discretion and for clear error. AssistMed has not made the

required showing as to Requests Nos. 12 and 26.

C

Finally, AssistMed challenges the magistrate judge’s order on

the ground that it is erroneous to the extent it denied or limited

discovery on other grounds, including relevance.

 

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1

With respect to Request No. 6, AssistMed challenges the

magistrate judge’s order insofar as it limits discovery to copies

of modifications, changes, or fixes that were made to the MVP and

provided to AssistMed under the License Agreement. It offers the

conclusory assertion that the evidence it seeks is relevant to its

fraudulent inducement and breach of contract claims and that the

magistrate judge “erred” in limiting the discovery under this

category. P. Br. 14. AssistMed has not shown that the magistrate

judge abused her discretion in allowing more limited discovery than

AssistMed sought in this category.

2

AssistMed objects to the magistrate judge’s limitation of

discovery under Request No. 22 to agreements concerning the MVP

technology. It maintains that it is entitled to discovery of all

agreements between CHS and JHU. AssistMed has not shown that the

magistrate judge abused her discretion in allowing more limited

discovery than AssistMed sought in this category.

3

Concerning Requests Nos. 23, 24, and 25, AssistMed objects to

the magistrate judge’s denial of discovery concerning

communications between JHU and CHS. The magistrate judge denied

discovery “without prejudice to reassert[ing] the motion to compel

after additional discovery has been conducted.” P. App. 190

 

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(emphasis added). Because AssistMed can still seek this discovery,

it must show that the delay incurred in doing so will prejudice it

in conducting other discovery or in preparing for trial. It has

not done so, and the court declines to disturb the order on this

basis.

4

AssistMed’s third argument challenging the magistrate judge’s

ruling concerning Request No. 11 is overruled for reasons similar

to those set out supra at § IV(B)(4): AssistMed does not specify

the standard of review and explain why the magistrate judge’s

decision is reversible under that standard, and the court cannot

determine how to assess its arguments. Evaluating the magistrate

judge’s decision for abuse of discretion or for clear error, the

court holds that AssistMed has not made the required showing.

5

AssistMed objects to the magistrate judge’s ruling concerning

Request No. 12 to the extent based on the apparent conclusion or

assumption that the License Agreement was terminated. This

argument is similar to one addressed and rejected supra at

§ IV(A)(1). For reasons akin to those explained there, the court

holds that AssistMed has failed to show that the magistrate judge

abused her discretion.

 

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6

Concerning Request No. 26, AssistMed contends it is entitled

to discover an email between MMV and Florimbi. AssistMed specifies

no standard of review and fails to explain why the magistrate

judge’s decision is reversible under that standard. Evaluating the

magistrate judge’s decision for abuse of discretion and for clear

error, the court holds that AssistMed has not made the required

showing.

* * *

The magistrate judge’s January 11, 2006 order granting in part

and denying in part AssistMed’s December 20, 2005 motion to

overrule objections, compel discovery responses, and for extension

of time to designate expert witnesses is

AFFIRMED.

May 11, 2006.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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