United States District Court, D. Colorado
ORDER RE: DISPUTED PROTECTIVE ORDER
KATO CREWS U.S. MAGISTRATE JUDGE
Order addresses Plaintiff Tina Shaw's
(“Shaw”) and the Defendants' dispute
regarding five clauses in the parties' proposed
protective order. Consistent with my Civil Practice
Standards, the parties contacted my Chambers concerning their
dispute and were instructed to submit their respective
proposed orders and briefs arguing the disputed provisions.
[#197.] The Court reviewed the briefs [#198
(Defendants' Discovery Brief); #199 (Shaw's Discovery
Brief)], the proposed protective orders [#198-1; #199-1], the
docket, and applicable law. Oral argument will not materially
assist the Court's consideration of an appropriate
protective order. [See #200 (Minute Order Vacating
this is a product liability action to recover damages Shaw
suffered from a motor vehicle accident on Interstate 70 in
Adams County, Colorado. [#214 at ¶1.] Shaw alleges the
accident was caused by the failure and tread separation of a
Capital Precision Trac II tire manufactured and distributed
by Defendants. [Id. at ¶¶1, 6, 26, 68-70.]
In relevant part, Shaw seeks damages for disfigurement; pain
and suffering and emotional distress; past and future
medical, hospital, and rehabilitation care and services;
nursing care and services, medications, therapies, and other
care and assistance expenses; loss of enjoyment of life and
impairment of the quality of life; physical and cognitive
impairment; and scarring. [#163, §5.]
Rule of Civil Procedure 26(c) allows a court to issue a
protective order for good cause to “protect a party or
person from annoyance, embarrassment, oppression, or undue
burden or expense[.]” Fed.R.Civ.P. 26(c). Good cause is
not met by conclusory statements. Klesch & Co. Ltd.
v. Liberty Media Corp., 217 F.R.D. 517, 524 (D. Colo.
2003). Instead, “the party seeking a protective order
must show that disclosure will result in a clearly defined
and serious injury to that moving party.” Id.
(citing Exum v. United States Olympic Committee, 209
F.R.D. 201, 206 (D. Colo. 2002)). Ultimately, the decision to
issue a protective order rests within the sound discretion of
the trial court. Wang v. Hsu, 919 F.2d 130, 130
(10th Cir. 1990).
though the parties initially contacted Chambers concerning a
“stipulated” protective order, Shaw now argues
that Defendants have made no showing of good cause for a
blanket protective order, and that Defendants waived their
right to a protective order. [#199 at pp. 1-2.] The Court
the Court notes that Shaw attached a proposed
“Stipulated Protective Order” to her
discovery brief which states that “[d]iscovery in this
case . . . is certain to involve medical, health, personal or
other information of a sensitive and/or private nature about
Plaintiff.” [Id. at p.1 (emphasis added).] Why
Shaw now opposes the entry of a protective order in this
matter is beyond the Court, particularly where a protective
order would inoculate her personal and medical records from
public disclosure. In any event, the Court finds the
potential for the public disclosure of Shaw's production
of documents and things containing her private medical and
health information, and Defendants' production of
documents and things containing their “business,
competitive, proprietary, [or] trade secret”
information, poses a serious injury that is sufficiently
clear and defined to warrant issuance of a protective order.
[See #198-1 at p.1.]
the Court is not persuaded by Shaw's argument that
Defendants' waived their right to a protective order. The
only controlling precedent Shaw relies on is the Tenth
Circuit's opinion in In re Coordinated Pretrial
Proceedings in Petroleum Products Antitrust Litigation.
669 F.2d 620 (10th Cir. 1982). There, the party sought
protection from a subpoena. Id. at 622 n.2. The
Tenth Circuit held that a Rule 26(c) motion for protection
from a subpoena must be made “before the date set for
production.” Id. Here, Defendants move for a
blanket protective order to protect confidential or
proprietary information that is relevant to these proceedings
and likely to be disclosed during pretrial discovery.
Therefore, their request for a protective order is timely,
and the Court finds good cause for entering a protective
order. The Court now turns to the specific proposed
provisions in dispute.
seeks to include a sharing provision that would allow her to
disseminate confidential information to any attorneys
“handling claims or legal proceedings . . . involving a
substantially similar tire, including other Capital Precision
Trac II tires, . . . by any of the Defendants.” [#199-1
at ¶5(g).] She argues that sharing provisions in product
defect cases against large corporate defendants are
commonplace and help promote efficiency in the discovery
process. [#199 at pp. 3-4.]
Court acknowledges that judges and litigants are bound by
Federal Rule of Civil Procedure 1, which requires the civil
procedure rules be employed in a manner “to secure the
just, speedy, and inexpensive determination of every action
and proceeding.” Fed.R.Civ.P. 1. As Shaw correctly
notes, sister courts have recognized Rule 1 as supporting
sharing provisions to ensure efficient and inexpensive
determination of other cases involving similar claims and
similarly situated litigants in products liability cases.
See, e.g., Ward v. Ford Motor Co., 93 F.R.D. 579 (D.
Colo. 1982) (finding a sharing provision appropriate where
alleged a design defect was the cause of hundreds of injuries
to plaintiffs in “several hundred such cases . . .
filed in various courts throughout the United States”);
Baker v. Ligget Group, Inc., 132 F.R.D. 123 (D.
Mass. 1990) (issuing protective order with sharing provision
with litigants in other tobacco tort cases); see also
Charter Oak Fire Ins. Co. v. Electrolux Home Products,
Inc., 287 F.R.D. 130 (E.D.N.Y. 2012). But those case are
distinguishable from Shaw's case.
Ward, the Court vacated a protective order that
contained a no-sharing clause because the plaintiff asserted
that a design defect was the cause of hundreds of injuries to
multiple plaintiffs in “several hundred such cases . .
. filed in various courts through the United States.”
93 F.R.D. at 579. A sharing provision was allowed in
Baker due to the discovery needs of similar
plaintiffs in comparable, pending tobacco tort cases.
See 132 F.R.D at 126. The Baker Court was
persuaded by plaintiff's showing of a “compelling
and extraordinary need with counsel for the same plaintiff in
other related litigations against [defendant].” 287
F.R.D. at 134 (finding duplicative discovery in cases
involving the same plaintiff and defendant would
“result in an enormous waste of time and resources for
the party and the court.”).
end, Shaw directs the Court to the one other case
she knows of that was filed against two of the five
Defendants in this case-Shandong Yongsheng Rubber Group Co.,
Ltd. and American Tire Distributors, Inc. (the
“Salazar case”). [See #199 at
p.4 n.6.] The Salazar case, however, involves a
“Hercules All Trac A/T tire, LT 245/75R16 bearing DOT
number JELK FCL 3009.” The matter currently before this
Court involves a different tire-the “Capitol Precision
Trac II size 265/75R16 M tire believed to bear DOT number
JENK ETP 1712.” [Compare #199-6 at ¶3.1,
with #216 at ¶103.] These tires appear to
differ in brand, size, and model. Moreover, three of the
Defendants in Shaw's case (Shandong Yongsheng Rubber Co.
Ltd, ITG Voma Corp., and American Tire Distributors Holdings,
Inc.) are not defendants in the Salazar case.
[See #199-6.] Thus, a sharing provision would expose
confidential and proprietary information of other litigants
not party ...