IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MIGUEL ANGEL FUENTES )

CORDOVA, et al., etc., )

 )

Plaintiffs, )

 )

v. ) CIVIL ACTION 14-0462-WS-M

 )

R & A OYSTERS, INC., et al., )

 )

Defendants. )

 ORDER

This matter is before the Court on the plaintiffs’ objections to an order of 

the Magistrate Judge. (Doc. 145). The defendants have filed a response and the 

plaintiffs a reply, (Docs. 153, 157), and the matter is ripe for resolution. After 

careful consideration, the Court concludes that the Magistrate Judge is due to be 

affirmed.

DISCUSSION

The order at issue makes two non-dispositive rulings. (Doc. 142). A 

Magistrate Judge’s ruling on a non-dispositive matter must be affirmed unless “it 

has been shown that the magistrate judge’s order is clearly erroneous or contrary 

to law.” 28 U.S.C. § 636(b)(1)(A); accord Fed. R. Civ. P. 72(a). As the Court has 

noted, “[t]he ‘clearly erroneous or contrary to law’ standard of review is 

extremely deferential. ... Relief is appropriate under the ‘clearly erroneous’ prong 

of the test only if the district court finds that the Magistrate Judge abused [her] 

discretion or, if after reviewing the record as a whole, the Court is left with a 

definite and firm conviction that a mistake has been made. ... With respect to the 

‘contrary to law’ variant of the test, an order is contrary to law when it fails to 

apply or misapplies relevant statutes, case law or rules of procedure.” Wright 

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Transportation, Inc. v. Pilot Corp., 2013 WL 5718997 at *1 (S.D. Ala. 2013) 

(internal quotes omitted).

I. Deposition Length.

The Rule 16(b) scheduling order provides, in relevant part, that “[e]ach 

deposition is limited to a maximum of 7 hours for parties and experts and 4 hours 

for all other depositions, unless extended by agreement of the parties ....” (Doc. 

92 at 2). The plaintiffs desire to depose “two key corporate employees” of the 

corporate defendant (“Fox” and “Wilson”) for seven hours, but the defendants 

complained that these employees are not “parties” for purposes of the scheduling 

order. The plaintiffs filed a motion to clarify the scheduling order by confirming 

that the deponents qualify as parties or, in the alternative, to amend the scheduling 

order to permit the deponents, if non-parties, to be deposed for seven hours 

anyway. (Doc. 124). In his order resolving the motion, the Magistrate Judge 

clarified that the term “party” means “a person whose name is designated on 

record as a plaintiff or defendant” as well as any Rule 30(b)(6) deponent 

designated by the corporate defendant. The Magistrate Judge further found that 

the plaintiffs had failed to show the “good cause” necessary for an amendment to 

the scheduling order under Rule 16(b)(4). (Doc. 142 at 1-2). The plaintiffs 

challenge both rulings.

The plaintiffs first argue that the Magistrate Judge’s interpretation of 

“party” to exclude high-level employees of the corporate defendant (except to the 

extent presented as Rule 30(b)(6) deponents) constitutes an abuse of discretion and 

is thus clearly erroneous. They argue that a managing agent of a corporation may 

be deposed pursuant to Rule 30(b)(1) without a subpoena; that the testimony of 

such a deponent may bind the corporation; that Fox and Wilson meet the test of a 

managing agent; that the defendants effectively conceded the same by accepting 

the deposition notices without demanding subpoenas; and that they (the plaintiffs) 

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intend to elicit from these deponents testimony binding on the corporate 

defendant. (Doc. 145 at 2-3, 5-9).

It is not immediately apparent how an employee’s ability to bind a 

corporation by her testimony transforms the employee into “the corporation” in 

any meaningful sense.1 The Court, however, need not tarry over the plaintiffs’ 

argument, because it rests on a non sequitur. Regardless of whether an employee 

may be treated as equivalent to a party for purposes of Rule 30, the relief the 

plaintiffs sought from the Magistrate Judge was a clarification of what the 

Magistrate Judge intended by his use of the term “party.”2 

“The district court is in the best position to interpret its own orders.” Alley 

v. United States Department of Health and Human Services, 590 F.3d 1195, 1202 

(11th Cir. 2009) (internal quotes omitted). Thus, “[w]hen a district court interprets 

its own order we are obliged to review that interpretation for abuse of discretion 

and accord its interpretation deference so long as it is reasonable.” Nebula Glass 

International, Inc. v. Reichhold, Inc., 454 F.3d 1203, 1211 (11th Cir. 2006). 

Presumably, a judge could employ such a tortured definition of a term in his order 

as to render his definition unreasonable and an abuse of discretion – say, for 

example, if she defined “white” as meaning “black,” or “party” as meaning 

“penguin” or “left-handed brunette.” But there is absolutely nothing odd or 

unnatural about defining “party” for purposes of deposition length to mean the 

 1 That is, it is not clear that binding a corporation is the same as being the 

corporation. Any agent, within the limits of his authority, can bind his principal, but one 

does not often hear of an agent described on that reasoning as being the principal. 

2 “Plaintiffs ... submit this Motion ... to Clarify the Meaning of “Party” in 

Section 7(b) of the Order.” (Doc. 124 at 1). The Magistrate Judge was asked to 

determine whether Fox and Wilson were “‘parties’ within the meaning of the Scheduling 

Order.” (Id. at 2). The plaintiffs “request[ed] clarification from the Court that Fox and 

Wilson are ‘parties’ for purposes of Section 7(b) of the Scheduling Order.” (Doc. 124-1 

at 5). They “request[ed] clarification ... regarding whether managerial employees ... are 

considered ‘parties’ for purposes of deposition length under Section 7(b) of the 

Scheduling Order.” (Id. at 7). 

 

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named parties and (which is the same thing) the 30(b)(6) representative of a 

named corporate party. 

The defendants wonder, “How can the Magistrate Judge interpret his own 

order incorrectly?” (Doc. 153 at 3). The question is not exactly the right one, 

since it focuses on correctness rather than reasonableness, but it points out the flaw 

in the plaintiffs’ argument. The plaintiffs in their reply brief do not answer the 

question but simply avoid it. (Doc. 157 at 3-4). The Court, however, cannot do 

so. 

“A schedule [entered under Rule 16(b)] may be modified only for good 

cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The defendants, 

without defining what “good cause” entails, assert that the Magistrate Judge’s 

failure to find good cause for modifying the scheduling order is an abuse of 

discretion and thus clearly erroneous. (Doc. 145 at 9-10).3 They argue that Fox 

and Wilson are “key corporate employees who have substantial information that 

relates directly to Plaintiffs’ claims,” such that they need a full seven hours to 

depose them completely. (Id.).

Only two of the original six claims in this lawsuit remain: one for breach 

of contract regarding the payment of promised wages and other compensation, the 

other regarding a retaliatory refusal to rehire certain plaintiffs because they sought 

to vindicate their FLSA rights. The plaintiffs identify Fox as a source of needed 

information about: (1) how the corporate defendant estimated the hours the 

plaintiffs worked; and (2) the meeting where the defendants revoked their promise 

of visas for the next season. (Doc. 145 at 7).4 The defendants do not explain how 

this short list of finite subjects could require an efficient lawyer seven hours to

 3 Because the only way of showing clear error invoked by the defendants is an 

abuse of discretion, (Doc. 145 at 5; Doc. 157 at 2), their appeal is so limited.

4 Fox will also testify as a 30(b)(6) representative regarding electronically stored 

information, but that time does not count against the four hours of his non-party 

deposition. (Doc. 145 at 7 & n.7).

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exhaust; much less do they explain how the Magistrate Judge could have not 

merely erred but have abused his broad discretion in concluding that their showing 

failed to demonstrate the requisite good cause for the requested extension.

Wilson is identified as one communicating with and between defendant 

Rodney Fox, government agent Connie Chavez, and the plaintiffs and other H-2B 

workers. The plaintiffs wish to depose Wilson regarding what she communicated 

to the plaintiffs about their terms and conditions of employment and their rehire 

for the 2014-2015 season, (Doc. 145 at 8), which is reasonable but hardly seems 

capable of requiring four hours to cover. The defendants note that Wilson had 

responsibility to prepare and certify certain papers in connection with the H-2B 

program, to communicate with Chavez about scheduling workers’ appointments, 

and to send Chavez a list of workers the corporation chose to hire, (id.), but they 

do not assert that they need to depose her on these matters; even had they done so, 

they offer no reason to suspect they need three additional hours to address them. 

Again, the defendants have done nothing to suggest that the Magistrate Judge 

abused his broad discretion in ruling that their thin showing failed to demonstrate 

good cause for an extension. Simply labeling the witnesses’ knowledge as “vast 

and critical,” (Doc. 157 at 2), carries no burden.

II. Confidentiality.

The Magistrate Judge entered a protective order, jointly proposed by the 

parties, addressing confidential information. (Doc. 115). The order provides in 

part that, when a party challenges its opponent’s confidentiality designation and 

the parties cannot informally resolve the dispute, the party asserting confidentiality 

may move the Court to confirm the designation. (Id. at 7). The defendants did so 

with respect to certain daily production reports and weekly payroll records that 

had been discussed in the corporate defendant’s Rule 30(b)(6) deposition. (Doc. 

131). The defendants asked the Magistrate Judge to “affirmatively declare that 

[four certain exhibits] are Confidential Information in accordance with the terms 

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of” the protective order. (Id. at 4). The Magistrate Judge granted the motion, 

declaring that “the exhibits at issue are Confidential and subject to the previously 

entered Joint Protective Order.” (Doc. 142 at 2). 

The plaintiffs assert that the Magistrate Judge’s ruling is both clearly 

erroneous and contrary to law, on the grounds that “there is a strong presumption 

in favor of maintaining open judicial proceedings.” (Doc. 145 at 10). And so 

there is, but designating discovery documents as confidential does not close any 

judicial proceedings. It does not, as in the plaintiffs’ cited cases, exclude the 

public from a trial or seal judicial records from the public. Whether the 

defendants could insist upon the exhibits being sealed from the public were the 

plaintiffs to submit them, say, in support of a motion for summary judgment or as

trial evidence, is a question not presented by the underlying motion or answered 

by the Magistrate Judge’s order. See generally Suell v. United States, 32 F. Supp. 

3d 1190 (S.D. Ala. 2014) (discussing agreed protective orders, how they 

“adequately address the interests of the parties,” and how the public has certain 

rights concerning access to filed discovery materials despite such orders).5

In a similar vein, the plaintiffs protest that the Magistrate Judge should 

have followed the analysis of cases weighing whether to enter a protective order 

under Rule 26(c). (Doc. 145 at 10-11). In this case, however, there already is a 

protective order – one agreed to by the plaintiffs themselves. Whether the 

Magistrate Judge properly could have declared the exhibits confidential absent the 

plaintiffs’ prior agreement to the confidentiality order is immaterial. 

Finally, the plaintiffs characterize the Magistrate Judge’s ruling as a “gag 

order” that “preclude[s] [them] from airing some of the most important evidence 

 5 The protective order envisions that the parties will file motions for leave to file 

confidential documents under seal and contemplates that the Court may deny such a 

motion. (Doc. 115 at 5-6). This is consistent with governing law. See, e.g., Suell, 32 F. 

Supp. 3d at 1192 (an agreed protective order to file certain materials only under seal does 

not bind a court or permit it to ignore the public’s constitutional and common-law rights 

of access to filed materials). 

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of their case in a public forum,” even as the defendants allegedly make public 

misrepresentations which those documents could refute or undermine. (Doc. 145 

at 11-12). What they complain of, however, is simply the predictable result of 

agreeing to a confidentiality order. 

Thanks to that order, the only question before the Magistrate Judge was 

whether the exhibits fell within any of the categories of “confidential information” 

identified in the agreed order. (Doc. 115 at 2). In their principal brief, however, 

the plaintiffs do not argue or even suggest that the exhibits at issue fall outside 

these categories. In their reply brief they change tack, arguing that the disputed 

exhibits do not constitute “confidential information” under the protective order. 

(Doc. 157 at 4-6). As the Court has stated on many occasions (and three times in 

this very lawsuit),6 absent a good reason for doing otherwise, it will follow the 

general rule nationally and not consider an argument first raised in a reply brief. 

Because the plaintiffs have offered no reason for failing to advance this argument

in their principal brief, the Court will not consider it. At any rate, their tepid effort 

falls far short of demonstrating that the Magistrate Judge’s characterization of the 

exhibits as confidential information is clearly erroneous or contrary to law.7 

 6 Cordova v. R&A Oysters, Inc., ___ F. Supp. 3d ___, 2016 WL 951570 at *1 n.1 

(S.D. Ala. 2016); Cordova v. R&A Oysters, Inc., 101 F. Supp. 3d 1192, 1198 (S.D. Ala. 

2015); Cordova v. R&A Oysters, Inc., 2015 WL 4523998 at *3 (S.D. Ala. 2015). 

7 The plaintiffs merely posit that, because the exhibits can be characterized as 

payroll records of the plaintiffs (which are non-confidential), they cannot also be 

characterized as containing proprietary information and/or certain financial information 

(which is confidential), or that, even if they can be characterized both ways, the nonconfidential characterization controls. (Doc. 157 at 5). Clearly, though, a document can 

fall within multiple categories, and the plaintiffs have done nothing to demonstrate that, 

in such an event, the non-confidential category governs. Since the express purpose of the 

protective order is “to safeguard any confidential or proprietary information involved in 

this case,” (Doc. 115 at 1), the plaintiffs’ construction is most improbable. 

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CONCLUSION

For the reasons set forth above, the Magistrate Judge’s order is affirmed.

DONE and ORDERED this 2nd day of June, 2016. 

 

s/ WILLIAM H. STEELE 

CHIEF UNITED STATES DISTRICT JUDGE

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