Winning the Fight for a Real Protective Order

Posted on January 9th, 2015 by sutteroconnell

The First District Court of Appeals, in Byrd v. U.S. Xpress, Inc., 2014-Ohio-5733, recently vacated and remanded the trial court’s order which allowed the plaintiff to share confidential and trade-secret information produced by the defendant during discovery.

This case involved a truck-automobile collision in which the driver of the car was killed. The defendant U.S. Xpress claimed the plaintiff’s discovery requests sought confidential information and trade-secrets, including documents related to financial status, marketing, research, and customer information. After U.S. Xpress’ failed attempts to negotiate a stipulated protective order, it filed a motion for a protective order. The plaintiff opposed the motion and submitted a proposed shared protective order. The plaintiff’s proposed order allowed U.S. Xpress to designate documents as “confidential,” but the plaintiff was permitted to disseminate the confidential materials to experts retained in the case and potential deponents and witnesses in any litigation against U.S. Xpress. Most notably, the plaintiff could disseminate the information to other plaintiff’s attorneys and experts involved in the “investigation, preparation, prosecution, or evaluation of any personal injury claims against” U.S. Xpress. The trial court judge signed the plaintiff’s proposed order. The defendant refused to cooperate with discovery and allow the plaintiff to disseminate its confidential information and appealed the order’s provisions.

On appeal, the First District agreed with U.S. Xpress. The Court found the order troublesome for two reasons. First, the order was not limited to sharing in cases “where there was an obvious benefit in terms of efficiency or protecting public safety.” This was problematic because it allowed the plaintiff to share U.S. Xpress’ information with other attorneys and experts “involved in the investigation, preparation, prosecution, or evaluation of personal injury claims against” U.S. Xpress that were not in any way related to the present case. The only similarity necessary for disclosure was a personal injury claim against U.S. Xpress.

Second, the order granted the plaintiff “virtually unfettered discretion” in determining who would receive the information. The plaintiff was required to keep a list of the individuals that received the information, but did not have to disclose the individuals to U.S. Xpress prior to disclosure. Only through a court order, or with the plaintiff’s permission, could U.S. Xpress determine who received the information.

While sharing information produced in discovery can reduce litigation costs, be more efficient, and promote the public interest, it is import to protect the legitimate confidentiality concerns of our clients and the information disclosed. As evidenced here, simply filing a lawsuit against the same defendant does not permit plaintiffs to disseminate confidential information at their own discretion, especially without prior notice to the defendant. Should you find yourself in a situation where the court orders you to disclose what you believe to be trade-secret and confidential information, and the other party has control of who receives the information, the order should immediately be appealed.

A full text of the opinion can be found here.