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Shaw v. Shandong Youngsheng Rubber Co. Ltd.

United States District Court, D. Colorado

October 30, 2019

TINA SHAW, Plaintiff,



         This 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.][1] 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 Discovery Hearing).]

         A. BACKGROUND

         Briefly, 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.]

         B. DISCUSSION

         Federal 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).

         Even 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 disagrees.

         First, 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.]

         Moreover, 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.

         1. Sharing Provision

         Shaw 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.]

         The 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.

         In 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.”).

         To this 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 ...

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