December 2007
To Share or Not to Share: N.D. West Virginia Rules on the Protective Order Debate
By Jana Roemmich
In the modern legal system, there is a well-recognized presumptive right to discovery in civil cases. This discovery is, however, not limitless and the federal courts are guided in deciding matters of discovery by the Federal Rules of Civil Procedure. Foremost among the Rules governing the limits of discovery is Rule 26, specifically Rule 26(b)(2) granting courts the authority to limit discovery and Rule 26(c) giving courts the power to enter orders to protect parties and witnesses during the discovery process. Interpretation of these Rules is always hotly debated and lately the debate has centered on Rule 26(c) and whether the courts should enter sharing protective orders, thereby allowing the party receiving discovery to share the documents with other potential litigants, or non-sharing protective orders.
On September 4, 2007, the District Court for the Northern District of West Virginia stepped into the middle of this debate when they decided Gil v. Ford Motor Company, No. 1:2006cv122, 2007 U.S. Dist. LEXIS 65269 (N.D. W.Va. Sept. 4, 2007). In this case, the defendant asked the court to enter an order for a non-sharing protective order. After careful analysis, the court granted the motion and determined that Ford was not required to enter into a sharing protective order as an initial matter and that the plaintiff would not be prejudiced by the entry of a non-sharing protective order.
In coming to this conclusion, the court entered into a fact specific inquiry and first heard the arguments of the defendant to determine whether “good cause” existed under Rule 26(c) to grant a non-sharing protective order. The defendant, Ford, argued that they were seeking only to protect certain documents containing trade secret or other confidential information that had not been previously disclosed and that had independent economic value. Additionally, Ford stated that they were willing to produce the requested documents as long as they were protected from further dissemination. Based on these arguments, the court determined that good cause existed and the burden then fell to the plaintiff to articulate a legitimate reason why the court should not deny a non-sharing protective order and instead enter a sharing protective order.
The plaintiff, Gil, objected to entry of a non-sharing protective order for a variety of reasons. Based on decisions arising out of the Ninth Circuit granting requests by collateral litigants to modify non-sharing protective orders, Gil argued that well-established public policy authorizes the sharing of information with other litigants and that he was entitled to a sharing protective order. He further argued that trade secrets are adequately protected by subsequent litigants under sharing provisions and that shared discovery forces defendants to be truthful and promotes judicial economy and makes the judicial system more efficient. The court found these arguments to be unpersuasive and granted Ford’s request for a non-sharing protective order.
The court analyzed the arguments of the plaintiff and defendant in depth and looked at applicable law and determined that there is no public policy or law mandating a sharing protective order. Specifically, the court distinguished cases involving requests by collateral litigants to modify non-sharing protective orders from a current request by a plaintiff for a sharing protective order. The court found that a current litigant is not precluded from receiving discovery due to a non-sharing protective order the way that a collateral litigant would be and further determined that current litigants have no presumptive right to share discovery with as yet unidentified and unrelated litigants because the court could not even determine whether the discovery at issue would be relevant to the cases of these unidentified potential litigants.
Likewise, the court found that it could not conclude that trade secrets would be adequately protected by a sharing provision given that subsequent litigants were not identified. Additionally, the court found Gil’s judicial economy argument unpersuasive and was unmoved by his argument that shared discovery promotes truthfulness.
The step-by-step approach taken by the court is commendable for several reasons. Foremost among these reasons is that the court actually looked at the facts of the case and applied the Rule governing the issue. The court’s in depth look at the issues and application of Rule 26(c) allowed it to determine the effect that its ruling would have on the actual litigants and whether or not a sharing protective order would give any articulable benefit to the actual litigants. Additionally, the court’s analysis did not attempt to decide issues of judicial economy and efficiency for the entire judicial system; instead, they only sought to determine whether or not a sharing protective order would promote efficiency and economy in this particular case.
In deciding the motion for a non-sharing protective order in Gil v. Ford Motor Company, the District Court for the Northern District of West Virginia took an exceedingly rational approach to the hot topic of sharing versus non-sharing protective orders, and they looked at the facts of the actual case and applied Rule 26(c). The court’s step-by-step approach determining first whether the documents were entitled to protection, then whether the defendant had met its initial burden of establishing “good cause” for a non-sharing protective order and finally listening to the objections of the plaintiff and weighing the benefits and burdens of a sharing versus non-sharing protective order to the actual current litigants, is simple and did not look beyond the facts of this particular case and the actual litigants involved.
Please call the author of this article, Jana P. Roemmich, or any of the firm’s other lawyers, for further information.