United States District Court, W.D. Kentucky, Paducah Division
CARLA CLIPPARD, as Administrator of the Estate of Timothy Clippard and CARLA CLIPPARD, Individually, Plaintiffs,
YAMAHA MOTOR CORPORATION, U.S.A. and YAMAHA MOTOR CO., LTD., Defendants.
MEMORANDUM OPINION AND ORDER
LANNY KING, Magistrate Judge.
On January 23, 2015, the undersigned Magistrate Judge held a telephonic conference with the parties regarding a discovery dispute in this products liability action involving death by outboard boat motor. Although the parties generally agreed that some type of protective order would likely be appropriate to protect Defendant's proprietary motor design drawings, test reports, and other trade secrets, they disputed whether the protective order should be of the "sharing" or "non-sharing" variety. The Court granted Defendant leave to file a motion for a non-sharing protective order. The motion, response, and reply are at DN 35, 36, and 39. This matter is ripe for determination.
Because Plaintiff has failed to demonstrate a need to share the confidential information that Defendant will provide to her during discovery in this case with similarly-situated plaintiffs in other cases, the Court will accept Defendant's proposed non-sharing provision and ask the parties to return to negotiations of a mutually-agreeable protective order. Accordingly, Defendant's motion will be GRANTED in part and DENIED in part.
The mutually-rejected proposals
Plaintiff's proposed sharing protective order, which Defendant rejected, is at DN 36-4, pp. 2-3; and Defendant's proposed non-sharing protective order, which Plaintiff rejected, is at DN 35-6.
According to Plaintiff's proposal, the scope of "confidential" information should be limited to "test reports and overall design drawings for the motor in question." DN 36-4, Paragraph 1. As to sharing, the confidential information: "shall not be disclosed or provided to any of Yamaha's competitors or to any public source including media, and internet sources." DN 36-4, Paragraph 2. However, Plaintiff and/or her attorney would be free to share confidential information with attorneys, consultants, and experts "involved in this litigation" and - what is the focus of the present controversy - with "attorneys presently or formerly involved in litigation against Yamaha which contain similar defect allegations." Paragraph 3.
In contrast, Defendant would define "confidential" information more broadly to include: "blueprints, manuals, test reports, test standards, drawings, correspondence, studies, marketing information, ECOs, specifications, graphs, charts, financial data, tax returns, accounting information, " etc. DN 35-6, Paragraph 7. There would be no sharing of confidential information: "to anyone (other than those persons employed in the offices of the counsel for the parties necessary to prosecute this litigation)" and to "experts and consultants that have been actually retained in this litigation, " with certain additional restrictions applying. Paragraph 4.
Fed.R.Civ.P. 26(c)(1)(G) provides that a court may, for good cause, issue an order to protect a party by requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way.
It is within the sound discretion of the trial court to determine what information is confidential, for example, whether trade secrets are relevant and whether the need outweighs the harm of disclosure. R.C. Olmstead, Inc., v. CU Interface, LLC, 606 F.3d 262, 269 (6th Cir.2010). Likely, if the court deems the information confidential, the appropriate procedural safeguards (for example, sharing versus non-sharing) that should attend their disclosure by means of a protective order are also a matter within the trial court's discretion. Id.
As indicated above, the parties' mutually-rejected proposals would define the scope of confidential information differently. While the parties provide some indication of their positions on this matter in the motion, response, and reply, their focus is upon the procedural sharing-versus-non-sharing issue. Accordingly, the Court will exercise its discretion to determine the procedural issue first and will determine the other issue at a later date in the event the parties are unable to agree.
Plaintiff has not identified any specific case she deems similar to her own, or any particular "attorneys presently or formerly involved in litigation against Yamaha which contain similar defect allegations." DN 36-4, Paragraph 3. She has not indicated how a sharing provision would benefit her in this litigation, or how she would be prejudiced in this case by being required to refrain from disseminating confidential material to litigants in other cases.
In contrast, the potential economic harm to Defendant is self-evident if the Court were to allow Plaintiff and her attorney to divulge its propriety information to plaintiffs now and in the future as they deem them to be similarly situated, with no prior opportunity to object by Defendant or monitoring by the Court.
Plaintiff seeks what one court characterized as "preemptive permission for collateral litigants to have full access to confidential materials that have yet to be produced in this litigation" in the name of "expedit[ing] the litigation process for other actions." Beavers-Gabriel v. Medtronic, Inc., 2014 WL 7882099, * 2 (D.Hawaii). Rather than granting Beavers-Gabriel "preemptive permission" to share confidential discovery materials with potential future collateral litigants, the Court indicated that any such litigant should file a motion to ...