State Farm Fire and Casualty Company v. Amazon.com Incorporated et al

Filing 135

ORDER denying 134 Motion for Protective Order. [See attached order for further information.] Signed by Senior Judge James A. Teilborg on 3/6/2019. (RMW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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State Farm Fire and Casualty Company,
Plaintiff,

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ORDER

v.

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No. CV-17-01994-PHX-JAT

Amazon.com Incorporated, et al.,

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Defendants.

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On April 2, 2018, the parties filed a stipulated request for a protective order. (Doc.
87). On April 10, 2018, the Court denied that request and issued the following Order:
Pending before the Court is a stipulated-to protective order submitted
by Plaintiff and one Defendant. The stipulation offers the following
justification: “Good cause exists for entry of the Protective Order. In order
to comply with their respective disclosure obligations, the parties must
disclose information that is protected, private, and/or confidential. Some of
this information relates to Defendant Amazon.com, Inc.’s confidential and
proprietary business information.” (Doc. 87 at 2). The actual proposed order
lists certain categories of documents that will be protected and also states
“‘Confidential Information’ means any information that is private,
confidential, or proprietary, including the following representative but nonexclusive examples: ….” (Doc. 87-1 at 3).
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 language of the parties’ proposed protective order is too
generalized to meet the requirements of Rule 26. For example, it defines
confidential information as information that is confidential. It offers no
explanation of what information would be included or why it would need to
be protected. Accordingly, the stipulation will be denied. Therefore,
IT IS ORDERED that the stipulation for a protective order (Doc. 87)
is denied, without prejudice.

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(Doc. 88).

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Almost one year later, on March 6, 2019, the parties filed another stipulated request
for a protective order. (Doc. 134). The new request does not cure the deficiencies
identified in the prior protective order. Specifically, it still seeks to protect “Defendants’
confidential and personal information” (Doc. 134 at 2) but does not specify why such
information is entitled to protection.1 Further, the proposed order states: “The following is
a list of representative but not exclusive examples of the types of confidential information
that the parties may exchange: …”. (Doc. 134-1 at 3). Thus, the parties still seek an order
that allows them to mark “representative” items as confidential without making any
showing that such items are entitled to protection. Finally, by way of example, the parties
state that they will mark “Email chains from Amazon and Amazon UK, which reveal
confidential internal business and safety processes, and may implicate UK data privacy
laws.” (Doc. 134-1). If disclosing information violates the law, the parties should not
disclose it. The Court is aware of no authority that would give this Court the power to give
the parties permission to violate the law.

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Moreover, discovery in this case has been ongoing since at least December 2017.
(Doc. 67). Discovery closes in May 2019. The Court assumes discovery is close to
complete. Thus, the Court finds this late request for a protective order likely untimely as
the Court will not enter the Order retroactively as to information already exchanged.

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Based on the foregoing,
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The Court is not even clear to whom the parties refer when they say “Defendants.”
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IT IS ORDERED that the motion for protective order (Doc. 134) is denied.

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Dated this 6th day of March, 2019.

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