By Alan Hoffman on June 9, 2017

gavel courtDiscovery in product liability cases often involves inquiry into and disclosure of a firm’s confidential internal product information and documents not available to competitors or the public that it has a legitimate interest in protecting. Plaintiffs frequently serve broad brush stroke discovery in an effort to avoid in missing documents, information and witnesses that might prove relevant to prosecuting their claims. Defense counsel must act quickly and effectively to defend their clients’ valid interests, and seek to limit the scope of discovery as much as possible to avoid costly and burdensome discovery disruptive to their clients’ normal course of business.

The outcome of these competing interests is often a wrangle over what is relevant to any party’s claim or defense and proportional to the needs of the case, and therefore discoverable. Protective orders provide a means to balance the plaintiff’s need to know with the defendant’s need for confidentiality. Federal Rule 26(c) authorizes courts to issue orders requiring that a trade secret or other confidential research, development, or commercial information “not be revealed or be revealed only in a specified way.” An agreed form of protective order, entered by the court, allows the parties to conduct full and free discovery without fishing expeditions or sandbagging.

A good opportunity to do this is the discovery planning conference required in federal courts, and the best practice in state courts. Defendants should submit a proposed form of order to plaintiffs as soon as possible, so that it can be incorporated into a discovery plan and approved by Court, allowing discovery to proceed.

But counsel must remember that courts vary in their willingness to issue protective orders. Some will routinely enter agreed protective orders on the premise that the lawyers know best what a case requires and that the adversary process protects the interests of all concerned. However, many courts require an affirmative showing of good cause for a proposed protective order, even where the parties are in agreement.

The following history is illustrative. The parties in a federal court products case negotiated and submitted a proposed protective order with their proposed discovery plan and scheduling order. Although the proposed order conformed to the requirements of the local rule governing confidentiality of discovery materials, the court rejected it on the ground that generally pretrial discovery must occur in the public eye unless compelling reasons exist for limiting the public’s access.[1] It added that even where the parties agree on the terms of a protective order, they must still show good cause for the court to approve it.

The court concluded that that the parties had not shown good cause for issuance of a protective order in the case before it, and denied the request. But it allowed the parties to submit a revised discovery confidentiality agreement and proposed order consistent with the requirements of Rule 26(c), applicable case law and local procedure.

The parties took the court’s suggestion, went back to the drawing board, and negotiated a new protective order. The revised protective order was limited to materials that objectively qualified as genuinely confidential trade secrets and commercial information and were not in the public domain or obtainable through public sources, and were protectable under the Federal Rules.[2]  It provided for any party or member of the public to challenge the confidentiality of materials so designated. And the parties agreed that good cause existed because the protective order would facilitate the exchange of information in discovery and balance the interests of privacy and public access, and was in the interest of justice. The court entered the revised protective order as requested.

Consent protective orders can play an important and beneficial role in product liability cases. But the lawyers should be careful to follow the governing authority and local practice, and be prepared to show good cause for entry of a protective order in light of the facts and issues in the case. And the lawyers should strive to act in a spirit of mutual openness and trust to streamline and expedite discovery, and to minimize the burden of litigation for the court and the parties.

[1] The public’s right of access to discovery materials that are not part of the record in a case is open to question. Unlike pleadings and motions, discovery materials are rarely filed with the court, and many courts do not regard them as “judicial documents” which the public is entitled to see. See, e.g., Stenger v. Lehigh Valley Hosp. Ctr., 554 A.2d 954 (Pa. Super. Ct. 1989).

[2] See, e.g., Citizens First Nat. Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943   (7th Cir. 1999).