                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         JUN 21 2000
                                TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk


ZORA L. TOTH, PH.D,

             Plaintiff-Appellant,
                                                       No. 99-1235
v.                                                  (Dist. of Colorado)
                                                (D.C. No. 97-WY-2662-AJ)
GATES RUBBER COMPANY,

             Defendant-Appellee.




                          ORDER AND JUDGMENT *


Before KELLY, MURPHY, and COOK **, Circuit Judges.


      Appellant, Zora Toth (“Toth”), appeals the district court’s order dated April

14, 1999, denying her objection to an order entered by United States Magistrate

Judge Patricia A. Coan on March 16, 1999. The district court’s order affirmed

the magistrate judge’s ruling that certain documents currently in the possession of



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

       Honorable H. Dale Cook, Senior District Judge, U.S. District Court for
      **

the Northern District of Oklahoma, sitting by designation.
the court were to be returned to Appellee, Gates Rubber Company (“Gates”).

Gates is the defendant in the underlying case, in which the district court had

previously issued a final judgment on the merits. 1 Exercising jurisdiction

pursuant to 28 U.S.C. § 1291, this court affirms the district court’s order.

I.    Factual Background

      On December 19, 1997, Toth filed a complaint in United States District

Court for the District of Colorado naming Gates, her former employer, as

defendant. In her complaint, Toth asserted claims for breach of contract,

promissory estoppel, discrimination based on sex, discrimination based on

national origin, retaliation, and violations of the Equal Pay Act.

      During the course of conducting discovery in Toth’s lawsuit, Gates learned

that Toth had in her possession documents that Gates considered proprietary.

Gates contends these documents were improperly removed from the workplace by

Toth over the course of her twenty-four year tenure with Gates. Gates’ efforts to


      1
        In the underlying case, the district court granted summary judgment in
favor of Gates and dismissed all of Toth’s claims.    See Toth v. Gates Rubber Co. ,
31 F. Supp.2d 1249 (D. Colo. 1998). Toth appealed the district court’s grant of
summary judgment. In this merits appeal, also decided today, this court affirmed
the grant of summary judgment on Toth’s Equal Pay Act, Title VII wage
discrimination, promissory estoppel, breach of contract, and failure-to-promote
claims. This court reversed the grant of summary judgment on Toth’s
discriminatory discharge and retaliation claims.    See Toth v. Gates Rubber Co. , -
--- F.3d. ---- (10th Cir. 2000).



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recover the documents culminated in its request for an order compelling Toth to

return the documents. Gates’ request was addressed by a magistrate judge on July

23, 1998. The magistrate judge ordered Toth to return the originals and all copies

of the documents in question to Gates. The magistrate judge further instructed

the parties that Gates would be allowed to stamp any or all of the documents

“confidential.” Gates was to return a copy of each document to Toth after they

had been stamped. The magistrate judge then ruled that at the conclusion of the

litigation all copies of all documents must be returned to Gates.

      After the hearing, Toth filed both a motion to stay the magistrate judge’s

order and an objection to that order. Gates filed responses to both the motion to

stay and the objection. Although the district court eventually granted summary

judgment in favor of Gates on all claims raised in Toth’s complaint, the district

court did not rule on either the motion to stay or the objection. On January 29,

1999, Gates filed a motion with the magistrate judge seeking an order to show

cause. In its motion, Gates argued that because Toth and her counsel had failed

to produce the documents as required by the magistrate judge’s July 23rd order,

they should be held in contempt.

       Toth filed a response to Gates’ motion for an order to show cause. In her

response, Toth argued that because the district court had not yet ruled on either

the motion to stay or the objection to the magistrate judge’s July 23rd order, she


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was not required to comply with that order either because it was not final or,

alternatively, because compliance with the magistrate’s order would render the

motion and the objection moot.

      Gates’ motion on the issue was heard by the magistrate judge on February

16, 1999. At the hearing on the motion, the parties seemingly reached an

agreement as to the return of the documents. Consequently, the magistrate judge

denied the motion as moot. As part of the parties’ agreement, the documents were

to be delivered to the court and stored in the magistrate judge’s chambers during

the pendency of the litigation between Toth and Gates. Although approximately

ten boxes of documents were delivered into the possession of the court, when

Gates attempted to stamp the documents “confidential,” Toth objected. Gates

then renewed its motion for an order to show cause.

      In an order filed March 16, 1999, the magistrate judge first concluded that

the district court retained jurisdiction over the matter because it was collateral to

the final judgment entered by the district court on Toth’s underlying claims and

not part of the merits of the appeal of that judgment currently pending before this

court. See Howard v. Mail-Well Envelope Co., 150 F.3d 1227, 1229 (10th Cir.

1998); Garcia v. Burlington N. R.R. Co., 818 F.2d 713, 721 (10th Cir. 1987).

The magistrate judge then ruled that neither the motion to stay nor the objection

filed by Toth operated to automatically stay the July 23rd order. The magistrate


                                          -4-
judge, however, denied Gates’ motion for an order to show cause. The magistrate

judge further ordered that all documents currently in the court’s possession be

returned to Gates but allowed Toth’s counsel to retain one copy of each

document. Any copies retained by Toth’s counsel were to be returned to Gates at

the conclusion of the litigation. Toth filed an objection to the magistrate judge’s

March 16th order and Gates filed a response to Toth’s objections.

      On April 14, 1999, the district court entered an order affirming the

magistrate judge’s March 16th order and denying Toth’s objection to that order.

The district court concluded that Toth had demonstrated “no compelling reason

why she or her counsel should be entitled to retain [Gates’] proprietary and/or

confidential information during the pendency of the appeal, or at any time.” The

district court also denied Toth’s request that the matter be assigned to a different

magistrate judge and, further, granted Gates’ request for fees and costs incurred

in responding to Toth’s objection. Toth thereafter filed this appeal. 2




      2
       In this appeal, Toth does not contest the award of fees and costs to Gates
and does not appeal the district court’s decision not to reassign the matter to a
different magistrate judge. Because Toth has failed to raise these issues in her
opening brief, they are deemed waived.    See State Farm Fire & Cas. Co. v.
Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994).

                                          -5-
II.   DISCUSSION

      A magistrate judge’s ruling on a non-dispositive motion can be modified or

set aside if the district court concludes that it is clearly erroneous or contrary to

law. See Fed. R. Civ. P. 72(a). This court reviews a district court’s decision on

discovery matters for an abuse of discretion. See Cole v. Ruidoso Mun. Sch., 43

F.3d 1373, 1386 (10th Cir. 1994).

      Other than Toth’s conclusory statement, unsupported by any relevant case

law, that the magistrate judge’s order was “clearly and unequivocally contrary to

law,” her appellate brief is devoid of any cogent argument that convinces this

court that the magistrate judge’s conclusion that the documents in question should

be returned to Gates was clearly erroneous. 3 Toth baldly alleges that the

magistrate’s order will “cause great harm and/or damage,” but makes no attempt

to identify any such harm or damage flowing from the return of the documents.

      Although Toth also argues that the alleged settlement reached by the parties

at the February 16, 1999, hearing on Gates’ motion for order to show cause

resolved the matter and, thus, stripped the magistrate judge of authority to enter


      3
        By affirming the magistrate judge’s March 16th order directing that the
documents be returned to Gates, the district court, effectively, denied both the
motion to stay and the objection to the July 23rd order. Thus, the legal question
of whether either the motion to stay or the objection to the July 23rd order
effectively stayed the July 23rd order is moot. This court, therefore, does not
address any arguments made by Toth that relate to the effect either the motion to
stay or the objection had on the July 23th order.

                                          -6-
the March 16th order, that argument is also without merit. It is clear from the

record that the essential terms of the alleged agreement between the parties are

disputed. The magistrate judge, therefore, did not err when she implicitly refused

to recognize the existence of a binding agreement between the parties relating to

the return of the documents.

      After a review of the entire record, this court concludes that the district

court did not abuse its discretion when it denied Toth’s objection and affirmed the

magistrate judge’s March 16th order. The district court’s order affirming the

magistrate judge’s order entered on March 16, 1999, is hereby affirmed.

                                       ENTERED FOR THE COURT



                                       Michael R. Murphy
                                       Circuit Judge




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