Barten v. State Farm Mutual Automobile Insurance Company

Filing 296

ORDER denying 251 Motion for Protective Order; denying 252 Motion for Leave to File exhibits under seal.. Signed by Magistrate Judge Leslie A Bowman on 10/10/2013.(JKM)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Bryan Barten, a married man,
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Plaintiff,
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vs.
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State Farm Mutual Automobile Insurance)
Company, a foreign corporation doing)
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business in Arizona,
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Defendant.
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_________________________________ )

No. CIV 12-399-TUC-CKJ (LAB)
ORDER

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Pending before the court is the defendant’s motion for a protective order pursuant to
Fed.R.Civ.P. 26(c), filed on July 5, 2013. (Doc. 251)
Also pending is a motion for leave to file exhibits under seal in support of the motion
for a protective order. (Doc. 252)

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The plaintiff in this action, Bryan Barten, was covered by a personal injury protection

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(PIP) policy issued by the defendant, State Farm, when he was involved in an automobile

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accident and rendered a quadriplegic. Barten claims State Farm breached this policy by

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failing to pay benefits due and failing to inform him of the extent of his benefits.

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State Farm moves pursuant to Fed.R.Civ.P. 26(c) “for entry of a protective order

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precluding discovery of information and documents pertaining to the Michigan Auto

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Advancing Claims Excellence (“ACE”) program . . . beyond the documents and information

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State Farm has already produced.” (Doc. 251, p. 1) In support of its motion, it moves for

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permission to file under seal for this court’s consideration some of these ACE documents.

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(Doc. 252)

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The case has been referred to Magistrate Judge Bowman for all pretrial matters

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pursuant to the local Rules of Practice. LRCiv 72.2. The court finds this motion suitable for

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decision without oral argument.

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Discussion

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Pursuant to Rule 26(c)(1)(A), “[t]he court may, for good cause, issue an order to

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protect a party or person from annoyance, embarrassment, oppression, or undue burden or

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expense . . . forbidding the disclosure or discovery. . . .” Fed.R.Civ.P.

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“For good cause to exist, the party seeking protection bears the burden of showing

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specific prejudice or harm will result if no protective order is granted.” Phillips ex rel.

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Estates of Byrd v. General Motors Corp., 307 F.3d 1206, 1210-1211 (9th Cir. 2002). “If a

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court finds particularized harm will result from disclosure of information to the public, then

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it balances the public and private interests to decide whether a protective order is necessary.”

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Id. at 1211. The court has broad discretion “to decide when a protective order is appropriate

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and what degree of protection is required.” Id. In the pending motion, State Farm moves for

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a protective order precluding additional disclosure of its ACE program. (Doc. 251)

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ACE was an internal analysis of State Farm’s claims processing procedures, which

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was conducted in the 1990s. (Doc. 251) State Farm moves for a protective order precluding

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additional disclosure of the ACE program because the program was concluded long before

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Barten’s claims were processed. Specifically, State Farm seeks protection from disclosure

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required by Barten’s third request for admissions, sixth request for production of documents,

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seventh request for production of documents, and fourth set of requests for admission. (Doc.

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251, p. 5)

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In the companion motion, State Farm moves for permission to file some of the ACE
documents under seal so the court may examine them. (Doc. 252)
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Barten argues among other things that the motion for a protective order is untimely.
(Doc. 263, p. 4) The court agrees.

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“A motion for a protective order is timely if made prior to the date set for producing

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the discovery.” Brittain v. Stroh Brewery Co., 136 F.R.D. 408, 413 (M.D.N.C. 1991); see

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also 8 Wright & Miller, Federal Practice and Procedure § 2035, at 151. “In determining

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timeliness, a court should consider all of the circumstances facing the parties.” Id. “Thus,

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a failure to request a protective order prior to the time set for producing the discovery may

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be excused for good cause, such as lack of sufficient time or opportunity to obtain the order.”

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Id.

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In this case, Barton’s discovery requests were filed in late February of 2013. (Doc.

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263, p. 4) State Farm’s responses were due by the end of March of 2013. Id. State Farm’s

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pending motion for a protective order was filed more than three months later on July 5, 2013.

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It is untimely.

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State Farm argues in its reply brief that its motion was somehow occasioned by this

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court’s order filed on June 3, 2013. See (Doc. 229) The court does not see the connection.

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In that order, the court granted in part Barten’s motion to compel a response to his

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second request for production of documents. (Doc. 117) Specifically, the court ordered State

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Farm to comply with Barten’s request for “[d]ocumentation of the programs since ACE in

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which the principles of ACE are included.” (Doc. 229, p. 3)

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There is nothing in that order that explains State Farm’s failure to timely file the

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pending motion for a protective order. The order does not lift some sort of impediment to

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timely filing. It does not provide State Farm with information without which the motion

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could not be filed.

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State Farm asserts that the parties may not agree on the scope of discovery

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necessitated by the June 3, 2013 order. And while that does appear to be the case, this is a

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separate issue from the one presented in State Farm’s pending motion.

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State Farm has not shown good cause to excuse its late filing. Accordingly,

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IT IS ORDERED that the defendant’s motion for a protective order pursuant to
Fed.R.Civ.P. 26(c), filed on July 5, 2013, is DENIED. (Doc. 251)

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IT IS FURTHER ordered that the defendant’s motion for leave to file exhibits under

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seal in support of the motion for a protective order, filed on July 5, 2013, is DENIED. (Doc.

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252)

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DATED this 10th day of October, 2013.

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