June 2008
Fairness and Integrity in Discovery - Upholding Protective Orders
By Lisa Moran McMurdo and Jana P. Roemmich
Discovery is an integral part of the American legal system and is perhaps the most important aspect of civil litigation. During the discovery process, litigants often pose serious questions to the courts regarding their rights and legitimate interests and privacy concerns. Issues of fairness abound, and courts are forced to take a hard look at the facts laid out before them to determine how to best protect the interests of the parties while also maintaining the integrity of the judicial system. Issues such as whether a party’s proprietary information merits protection from public disclosure and whether to enter into a sharing or non-sharing protective order represent some of the hardest fought facets of civil litigation, and a court’s ruling on such discovery motions often sets the tone for an entire case. Fairness as well as the integrity of our judicial system demands that litigants be entitled to rely on such court orders and agreements when responding to discovery. If parties were not permitted to reasonably rely on such resolutions, the legal system would soon come to a halt as parties could never be confident that their privacy rights and confidentiality concerns had been adequately protected.
On December 4, 2007, the Supreme Court of Missouri issued a permanent writ of prohibition overturning a trial court’s attempt to modify a protective order following the settlement of litigation. In so holding, it determined that the trial court’s decision to vacate the non-sharing protective order entered into by the parties prior to discovery in the case was against the logic of the circumstances. State ex rel. Ford Motor Company v. The Honorable Michael W. Manners, 239 S.W.3d 583, 586-587 (Mo. 2007) (citing State ex rel. Ford Motor Co. v. Messina, 71 S.W.3d 602,607 (Mo. Banc. 2002) and State ex rel. Upjohn Co. v. Belt, 844 S.W.2d 467, 470 (Mo. App. 1992)). The Court held that enforcing protective orders reasonably relied on by parties during discovery was the most practical and cost efficient way to conduct discovery. It further determined that it would be unreasonable to conclude that Ford had insisted upon a non-sharing protective order and allowed access to confidential company files if it believed that the order would be modified pending the settlement or resolution of their litigation.
In its decision to prohibit the modification of the non-sharing protective order, the Supreme Court of Missouri considered Ford’s reliance on the order as a significant factor in its decision. Such a determination is in-line with several applicable standards that have been articulated by other courts and were considered in this Missouri decision. The Court found that even under the most lenient of these standards, which favors the modification of protective orders to avoid duplicative discovery, the producing party’s reliance on a protective order is a significant factor in determining if modification is proper.
Although the Court found that allowing parties to legitimately rely on protective orders and agreements promotes the interests of justice, it did not find that such orders and agreements should be blindly upheld. Rather, the Court found that all factors should be considered in making such a determination and that courts should not only factor in reliance interests, but also consider whether fraud or discovery abuse exists, when determining whether to modify a protective order.
The Supreme Court of Missouri’s holding considered issues of fairness to litigants as well as the consequences that decisions to modify protective orders might have on the willingness of future litigants to divulge confidential or proprietary information under protective orders. This well reasoned opinion may, however, have been one of the last lights shown in the increasingly dark world of discovery in civil litigation. See Kenneth J. Moran, Dark Days Ahead Under the Sunshine in Litigation Act of 2007, http://www.mrcpclaw.com/articles/2008/sunshine-in-litigation-act-of-2007.php.
For further information, please contact Lisa Moran McMurdo or Jana Roemmich, or any of the firm’s other lawyers.