White et al v. Home Depot USA Incorporated

Filing 26

ORDER: IT IS ORDERED that the motion for a prospective protective order (Doc. 25 ) is denied. See attached Order for complete details. Signed by Senior Judge James A Teilborg on 9/23/2016. (KAL)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Paul E White, et al.,
Plaintiffs,

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ORDER

v.

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No. CV-16-01185-PHX-JAT

Home Depot USA Incorporated,

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Defendant.

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The parties previously moved for a protective order and the Court issued the
following Order:
Pending before the Court is the parties’ joint motion for a protective
order. Global protective orders are not appropriate. See AGA Shareholders,
LLC v. CSK Auto, Inc., 2007 WL 4225450, at *1 (D. Ariz. Nov. 28, 2007).
Rule 26(c) requires a party seeking a protective order to show good cause
for issuance of such an order. Fed. R. Civ. P. 26(c)(1). “For good cause to
exist under Rule 26(c), ‘the party seeking protection bears the burden of
showing specific prejudice or harm will result if no protective order is
granted.’” AGA Shareholders, 2007 WL 4225450, at *1 (emphasis added)
(quoting Phillips v. G.M. Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002)).
The party seeking protection “must make a ‘particularized showing of
good cause with respect to [each] individual document.’” Id. (emphasis
added) (quoting San Jose Mercury News, Inc. v. U.S. Dist. Ct., 187 F.3d
1096, 1102 (9th Cir. 1999)).
Thus, “[t]he burden is on the party to requesting a protective order to
demonstrate that (1) the material in question is a trade secret or other
confidential information within the scope of Rule 26(c), and (2) disclosure
would cause an identifiable, significant harm.” Foltz v. State Farm Mut.
Auto. Ins. Co., 331 F.3d 1122, 1131 (9th Cir. 2003) (quoting Deford v.
Schmid Prods. Co., 120 F.R.D. 648, 653 (D. Md. 1987)).
Here, the proposed protective order states that the information will
be designated confidential, “…if counsel determines, in good faith, that
such designation is necessary to protect the interests of the client.” Doc.

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20-1 at 1. Such a standard is far too broad under Federal Rule of Civil
Procedure 26(c).
Accordingly,
IT IS ORDERED that the joint motion for protective order (Doc.
20) is denied, without prejudice.
Doc. 24.

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The parties have filed a second motion for a protective order. The Court questions

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whether the parties read the cases cited in this Court’s prior order. Specifically, the

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parties have now sought to designate everything confidential when “counsel determines,

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in good faith, that such designation is necessary to protect the interests of the client and

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the document is (a) a trade secret or other confidential information within the scope of

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Fed. R. Civ. P. 26(c), (b) information that is confidential regarding the Plaintiffs and may

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cause embarrassment or annoyance upon disclosure, and/or (c) information that may

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cause embarrassment regarding a third-party.” Doc. 25-1 at 1-2.

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As the prior order states, in bold, documents or depositions to be designated

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confidential must be specifically identified and the harm resulting from their disclosure

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must be identified. Instead of attempting to comply with this law, the parties sought to

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designate confidential anything that might cause embarrassment or annoyance upon

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disclosure. While these are words found in Rule 26 as a basis for seeking a protective

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order, the protective order could include the Court disallowing discovery targeted as such

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an improper goal. Those words were not intended to give counsel leave to conduct all

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discovery in a case subject to a protective order, which appears to be what counsel in this

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case really wants to accomplish.

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Because the parties have now tried twice to get this Court to approve an over

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broad protective order, the Court will deny any advance protective order. If a particular

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document (or category of documents) is sought in discovery, and counsel can show good

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cause for either not disclosing those documents or disclosing them subject to a protective

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order, counsel may seek a protective order on a document by document basis prior to

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disclosure. If the parties seek to protect a topic that may arise in a deposition, they must

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seek protection in advance of that deposition. In so moving, counsel must avow that the

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information has been maintained confidential by the parties up to this point (i.e. not

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shared with friends, posted on social media, or otherwise not maintained in confidence).

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Based on the foregoing,

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IT IS ORDERED that the motion for a prospective protective order (Doc. 25) is

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denied.
Dated this 23rd day of September, 2016.

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