Motion for Protective Order in New Mexico

Background

“A protective order prohibiting discovery sharing can make other litigation more difficult, costly and less efficient.” (Pincheira v. Allstate Ins. Co. (2008) 144 N.M. 601, 616 [internal citation omitted].)

Indeed, New Mexico courts have repeatedly recognize that, “[t]he pretrial discovery rules, including Rule 26, intend a liberal pretrial discovery, to enable the parties to obtain the fullest possible knowledge of the facts before trial.” (Marchiondo v. Brown (1982) 98 N.M. 394, 397 citing Griego v. Grieco (1977) 90 N.M. 174.)

General Information for Complaints and Motions

“Before the trial court can enter a protective order [for discovery], or modify the subpoena, there must be some showing that it is unreasonable and oppressive. That burden rests upon the party seeking to quash [discovery]....” (Blake v. Blake (1985) 102 N.M. 354, 360 [internal citation omitted].)

Standard of Review and Burdens of Proof

A party appealing a protective order has a duty to provide the transcript of the hearing for the order. (See., e.g., Kerman v. Swafford (1984) 101 N.M. 241, 245-46 [“Absent such transcript, [a] court has no way of determining the basis for the trial court's Protective Order limiting discovery. [A reviewing court] must indulge every presumption in favor of the Order. ... [this is because] the Motion lists grounds for which the court might grant a protective order.])

Further, where an order states that “good cause was shown” a reviewing court “cannot say that the trial court abused its discretion in granting the Motion.” (See, e.g., id.)

“A trial court decision limiting discovery will only be reviewed for an abuse of discretion.” (Kerman v. Swafford (1984) 101 N.M. 241, 245 citing Roberts v. Piper Aircraft Corp. (1983) 100 N.M. 363.)

The Court’s Decision

Final Appealable Order Requirement

New Mexico's “jurisdiction is limited to appeals from final judgments, interlocutory orders that practically dispose of the merits, and final orders after entry of judgment that affect substantial rights.” (Thornton v. Gamble (1984) 101 N.M. 764, 766.)

“The definition of a final order does not include matters of discovery:

‘Orders granting or denying a motion for protective order, like orders requiring or denying discovery, or orders requiring a party to submit to a physical or mental examination, generally do not constitute a final disposition of the proceedings. Therefore, they are not normally appealable, except upon the granting of an interlocutory appeal.’”

(Abalos v. Pino (1993) 115 N.M. 759, 760 citing In re Deposition of Bartow (1984) 101 N.M. 532, 534; see also 4 James W. Moore et al., Moore's Federal Practice § 26.83 [2d ed. 1989]; 8 Charles A. Wright Arthur R. Miller, Federal Practice and Procedure § 2006 (1970).)