The Boyd Group (U.S.) Inc. v. D'Orazio

Filing 139

MEMORANDUM and Order: The Motion for Protective Order filed by Non-Party Intervenor PPG Industries, Inc. ("PPG") 105 is denied. [For further details see order] - Signed by the Honorable Susan E. Cox on 9/15/2015 Mailed notice (np, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
THE BOYD GROUP (U.S.), INC.,
Plaintiff,
v.

ROGER A. D’ORAZIO, JR.

)
)
)
)
)
)
)
)
)

1:14-cv-7751

Magistrate Judge Susan E. Cox

Memorandum and Order
The Motion for Protective Order filed by Non-Party Intervenor PPG Industries, Inc.
(“PPG”) (Dkt. 105) is denied. Defendant Roger A. D’Orazio, Jr. (“D’Orazio”) requested
discovery from Plaintiff The Boyd Group (U.S.), Inc. (“Boyd”), which will likely require Boyd
to produce documents relating to PPG’s business relationship with Boyd. PPG filed the instant
motion as a non-party intervenor in this action, seeking an “attorneys’ eyes only” designation
over: 1) the paint supply contract that PPG entered into with Boyd, 2) drafts of that contract, and
3) “a small set of documents that reflect highly confidential and proprietary terms of the PPGBoyd Contract.” (Dkt. 105 at 2.) PPG argues that disclosure of these documents to its customers
or competitors in “the auto collision refinish business poses serious and irreparable risks of
economic harm to PPG,” because those customers and competitors could glean proprietary
information about PPG’s pricing and business model. (Dkt. 105 at 5-6.) According to PPG,
D’Orazio was involved in the relevant industry “for decades, and undoubtedly has frequent
contact with participants to whom such disclosure could be made, whether inadvertently or
otherwise.” (Dkt. 105 at 7.) As such, granting PPG’s motion is “proper and reasonable
regardless of whether specific evidence presently exists that disclosure of this information to
1

D’Orazio would, or even might, result in disclosure to participants in the broader North
American automotive refinish industry, including PPG’s customers and/or competitors.” (Dkt.
105 at 7.)
“In order to establish that information should be subject to a protective order, the party
seeking protection bears the burden of establishing that: 1) the information is in fact a trade
secret or confidential commercial information and 2) there is good cause to protect the
information.” Culinary Foods, Inc. v. Raychem Corp., 151 F.R.D. 297, 300 (N.D. Ill. 1993). To
establish “good cause” under Federal Rule of Civil Procedure 26(c), the moving party must show
that the “disclosure ‘will work a clearly defined and very serious injury’ to its business.” Id. at
300 n.1 (quoting United States v. IBM Corp., 67 F.R.D. 40, 46 (S.D.N.Y. 1975)). However,
“broad allegations of harm unsubstantiated by specific examples of articulated reasoning do not
satisfy the Rule 26(c) test.” Id. Where the allegations of injury stemming from disclosure of
confidential information are speculative, courts in this circuit have found that good cause does
not exist. See Harrisonville Telephone Co. v. Illinois Commerce Comm’n, 472 F. Supp. 2d 1071,
1078 (S.D. Ill. 2006). Courts must also balance the moving party’s interest in privacy with the
non-moving party’s need to adequately and fully prepare its case. See id. 1
PPG has failed to establish good cause for the protective order it seeks. First, PPG is
incorrect that a protective order is appropriate “regardless of whether specific evidence presently
exists” that D’Orazio might disclose the proprietary information. In fact, “courts have insisted

1

This Court recognizes that the relevant documents in Harrisonville were ordered to be produced to outside counsel
only in unredacted form, and produced to the parties “redacting pricing figures, that is, dollar amounts only, with the
redactions shown by black strike-outs, for review by at least one employee” and the plaintiff. 472 F. Supp. 2d at
1079. However, PPG has not sought a limited disclosure to D’Orazio, and has instead sought to prevent disclosure
of these documents to D’Orazio in any form. As such, the balance of the hardships in this suit is distinguishable
from the court in Harrisonville. As discussed more fully below, an order preventing D’Orazio from any review of
the documents would burden D’Orazio in his suit, while providing little to no additional privacy to PPG, considering
that PPG is unable to identify a specific, substantiated risk of disclosure, and the existence of a pre-existing
confidentiality agreement in this case that limits disclosure to third parties.

2

on particular and specific demonstration of fact, as distinguished from stereotyped and
conclusory statements, in order to establish good cause.” 8A Charles Alan Wright, Arthur R.
Miller, and Richard L. Marcus, Federal Practice and Procedure § 2035 (3d ed. 2010) (collecting
cases). PPG has failed to meet this requirement.
Moreover, D’Orazio is not a competitor of PPG. PPG asserts that D’Orazio was once a
customer of PPG, but that is no longer true. In fact, it was D’Orazio’s sale of his company and
subsequent exit from the relevant industry that gave rise to the underlying suit in this case. The
only evidence that PPG can conjure supporting its argument is that D’Orazio was involved in the
relevant industry for a long time and “undoubtedly” has contact with participants in the industry.
However, PPG has failed to identify who these participants are, or provide any evidence that
D’Orazio is, in fact, in contact with them. In short, there is no immediate danger to PPG in
allowing D’Orazio to see the relevant documents, and PPG has not articulated any harm other
than a generalized, unsubstantiated, speculative fear that D’Orazio might divulge them to PPG’s
current competitors or customers. This is not sufficient to meet the “good cause” requirement
pursuant to Rule 26(c). Additionally, there is already a confidentiality order in place in this suit
that limits D’Orazio’s ability to disclose PPG’s documents to third parties. (Dkt. 71 at 4-5.)
This sufficiently protects PPG’s privacy interests, while allowing D’Orazio the ability to aid his
counsel in preparing his defense by reviewing the relevant documents. Therefore, for the reasons
discussed above, PPG’s Motion for Protective Order (Dkt. 105) is denied.
ENTERED:

DATED: September 15, 2015

______________________________
Susan E. Cox
United States Magistrate Judge

3