BROGDON et al v. FORD MOTOR COMPANY

Filing 33

ORDER granting in part and denying in part 26 Motion to preserve confidential designations. Ordered by US DISTRICT JUDGE CLAY D LAND on 1/8/2024 (CCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
JAMES EDWARD BROGDON, JR., et
al.,

*
*

Plaintiffs,

*

vs.

*

FORD MOTOR COMPANY,

CASE NO. 4:23-CV-88 (CDL)

*

Defendant.

*
O R D E R

The Court entered a protective order that permits Ford Motor
Company

to

designate

as

confidential

documents

that

contain

commercially sensitive and/or proprietary information which has
been treated as confidential.

The protective order provides that

if the receiving party disagrees with the “Protected” designation
of any document and if the parties cannot resolve the dispute, the
designating party must ask the Court for a determination on the
issue.

The parties cannot agree on the designation of nine

exhibits, so Ford filed a motion to preserve the confidential
designations.

As discussed below, the motion (ECF No. 26) is

granted as to Exhibit 575 but otherwise denied.
DISCUSSION
Plaintiffs challenge the confidentiality designation of nine
exhibits, which the parties refer to by their exhibit numbers from
the Gwinnett County action, Hill v. Ford: Plaintiffs’ Exhibit 114,

Plaintiffs’ Exhibit 133, Plaintiffs’ Exhibit 133A, Plaintiffs’
Exhibit 135, Plaintiffs’ Exhibit 138, Plaintiffs’ Exhibit 154,
Plaintiffs’ Exhibit 236, Plaintiffs’ Exhibit 643, and Plaintiffs’
Exhibit 575. These documents include Ford’s research into proposed
changes to a safety standard on roof strength, as well as Ford’s
detailed design specifications for specific products.

The present

question for the Court is whether good cause exists for allowing
Ford to designate the exhibits as confidential.
if

the

exhibits

contain

commercially

Good cause exists

sensitive,

information that has been kept confidential.

proprietary

Ford presented

evidence that the documents do contain commercially sensitive,
proprietary information that has generally been kept confidential.
Plaintiffs, though, argue that the documents have been publicly
disclosed because they were admitted as evidence in the Hill
trials, so there is no cause to protect them in this case.1
It is undisputed that eight of the exhibits (all but Exhibit
575) were admitted into evidence at the Hill trials.2
was not.

Exhibit 575

Based on the present record, there is no indication that

Ford has waived any confidentiality protection to Exhibit 575.

Plaintiffs also argue that because some of the documents are nearly
twenty years old, they are no longer entitled to protection.
Ford,
though, presented evidence that although the documents are old, they
reveal information about Ford’s confidential processes, which Ford
continues to use. E.g., Krishnaswami Aff. ¶ 9, ECF No. 26-7. Based on
the present record, the Court cannot conclude that the documents are no
longer entitled to protection simply because they are old.
2 The first Hill trial ended in a mistrial.
1

2

Plaintiffs pointed to no evidence that Exhibit 575 was admitted
into evidence at either Hill trial or that it was the subject of
any testimony during either

Hill

trial.

Plaintiffs did not

establish that Exhibit 575 was publicly disclosed.
Ford’s

motion

Exhibit

575

to

is

preserve

granted.

the

confidentiality

Nothing

in

this

Accordingly,

designation

ruling

should

of
be

interpreted to mean that the Court will automatically grant a
motion to restrict Exhibit 575 if it is relied on in support of or
opposition to a motion or during a hearing or trial.
Plaintiffs argue that because the rest of the exhibits were
admitted

during

one

of

the

Hill

trials,

confidentiality claim as to those exhibits.

Ford

waived

any

There is no dispute

that Exhibits 114, 133, 133A, 135, 138, 154, 236, and 643 (“Hill
trial exhibits”) were admitted into evidence during one of the
Hill

trials.

confidentiality

Ford

argues

protection

that

for

it

those

has

not

exhibits

waived

any

because

the

protective order in Hill provided that confidential exhibits would
still be treated as confidential, and the Hill court ordered that
all exhibits to the trial transcript be filed under seal.

Def.’s

Mot. for Confidential Designation Ex. E, Stipulated Sharing and
Non-Sharing Protective Order ¶ 12 (State Court of Gwinnett Cnty.
Mar.

17,

2020),

ECF

No.

26-5;

3

Def.’s

Mot.

for

Confidential

Designation Ex. B, Order to File Document Under Seal (State Court
of Gwinnett Cnty. Dec. 5, 2022), ECF No. 26-2.3
Ford acknowledges that excerpts of Hill trial exhibits were
shown on a screen in the courtroom and that any members of the
public who were in the courtroom or watching on Courtroom View
Network’s broadcast of the trial could see those excerpts.

Ford

does not dispute that testimony was elicited about the Hill trial
exhibits in open court so that any members of the public in the
courtroom or watching the CVN broadcast could observe it.

Ford

nonetheless argues, without citing any authority, that the Hill
trial exhibits remain confidential in their entirety even though
parts of them were shown and testified about in open court.

So,

although Ford cannot seriously dispute that an exhibit which has
been

publicly

disclosed

in

open

court

does

not

retain

confidentiality, Ford’s argument is that the excerpts shown at the
Hill trials and the trial testimony about the exhibits did not
reveal enough detail to the public (whether attending the trial in
person or via CVN) to constitute a waiver of confidentiality for
the Hill trial exhibits.
The

Court

declines

to

grant

wholesale

confidentiality

protection for exhibits that were at least partially disclosed in

Plaintiffs filed a motion to modify the protective order, and the Hill
court denied it. Def.’s Mot. for Confidential Designation Ex. C, Am.
Order Denying Pls.’ Mot. to Modify Protective Order (State Court of
Gwinnett Cnty. Sept. 5, 2023), ECF No. 26-3.

3

4

open court.

Even if Ford had argued that only those portions of

the exhibits that were actually shown or discussed in open court
should

lose

their

confidentiality

protection,

Ford

presented

nothing from which the Court can determine what those portions
are—no copies of the exhibits, no explanation of what excerpts
were shown in open court, no transcripts of trial testimony that
would allow the Court to determine what portions of the exhibits
were

publicly

disclosed

in

open

court.

Thus,

Ford

did

not

establish which, if any, portions of the Hill trial exhibits have
been shielded from public disclosure such that Ford should be
entitled

to

maintain

the

exhibits in this action.

confidential

designations

of

those

Accordingly, Ford’s motion to preserve

the confidential designations is denied as to Exhibits 114, 133,
133A, 135, 138, 154, 236, and 643.
CONCLUSION
For the reasons set forth above, Ford’s motion to preserve
confidential designations (ECF No. 26) is granted as to Exhibit
575 but otherwise denied.
IT IS SO ORDERED, this 8th day of January, 2024.
s/Clay D. Land
CLAY D. LAND
U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

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