Flynn et al v. FCA US LLC et al
Filing
183
ORDER GRANTING IN PART 170 MOTION for Sanctions Motion for Emergency Relief to Compel Corrective Action for and for Sanctions for Violation of the Protective Order filed by FCA US LLC; DENYING 178 Supplement filed by FCA US LLC. Signed by Magistrate Judge Donald G. Wilkerson on 5/30/2017. (nms)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BRIAN FLYNN, GEORGE and KELLY
)
BROWN, and MICHAEL KEITH, on behalf )
of themselves and all others similarly situated,)
)
Plaintiffs,
)
)
v.
)
)
FCA US LLC, f/k/a Chrysler Group LLC and )
HARMAN INTERNATIONAL
)
INDUSTRIES, INC.,
)
)
Defendants.
)
Case No. 3:15-cv-855-MJR-DGW
ORDER
WILKERSON, Magistrate Judge:
This matter is before the Court on Defendant FCA US LLC’s Motion for Emergency
Relief to Compel Corrective Action for, and Sanctions for, Violation of the Protective Order (Doc.
170) and its Supplemental Evidence in Support of its Motion for Sanctions and its Motion for
Sanctions for Additional Violations (Doc. 178). For the reasons set forth below, its Motion for
Emergency Relief (Doc. 170) is GRANTED IN PART and its Supplemental Motion for
Sanctions for Additional Violations (Doc. 178) is DENIED.
RELEVANT BACKGROUND
This is a proposed class action in which Plaintiffs assert that various models of Defendant
FCA US LLC’s (“FCA US”) cars and trucks suffer from design defects that allow hackers to gain
access to Defendant Harman International Industries, Inc.’s (“Harman”) “uConnect infotainment
system.” Such vulnerability, Plaintiffs allege, allows hackers to gain access to, and take control
of, vehicles’ powertrain and safety related functions.
On motion of the parties, the Court entered an Amended Protective Order on January 9,
2017 (Doc. 148). Said protective order provides that “[n]o documents, information, or things
designated as ‘Confidential’ or ‘Attorneys’ Eyes Only’ shall be filed with the Court, including that
contained in pleadings, motions, briefs, declarations, or exhibits, except under seal.” The Order
also directs that “[p]rovided that no ‘Confidential’ information is disclosed, the parties may
generally refer to documents designated as ‘Confidential’ in pleadings, motions, briefs, affidavits,
or exhibits filed with the Court, without the need to file such pleadings, motions, briefs, affidavits,
or exhibits under seal” (Id. at p. 8).
In FCA US’s motion for emergency relief now before the Court, it asserts Plaintiffs
violated provisions of the Amended Protective Order and revealed information culled from
documents designated as “Confidential” in their public filing of a miscellaneous action to enforce
a third-party subpoena filed in the United States District Court for the Northern District of
California on April 24, 2017. FCA US asks the Court for various relief due to Plaintiffs’ alleged
violation, including: (1) order Plaintiffs and their Counsel to withdraw their motion to compel
non-party Cisco System, Inc.’s compliance with subpoena duces tecum and memorandum in
support in the miscellaneous action; (2) order Plaintiffs to close the miscellaneous action and take
any and all other actions necessary to remove FCA US’s confidential information from the record;
(3) close document discovery; (4) order the payment of attorney’s fees and costs incurred by FCA
US in connection with Plaintiffs’ filing of confidential information in the public record in the
miscellaneous action; and (5) grant FCA US all other appropriate relief.
In response to FCA US’s motion, Plaintiffs assert that the information deemed
“Confidential” by FCA US in its motion is not in fact confidential as it merely references
background information that is publicly available. Plaintiffs also remark that they did not attach
any confidential documents to their motion or memorandum in the miscellaneous action, but only
Page 2 of 6
referred to generic information from FCA US documents that was not confidential. In support of
their argument, Plaintiffs attached (and cited portions of) the deposition testimony of Laith Shina,
a Chrysler witness. Plaintiffs also indicated that despite their belief that they in no way violated
the Amended Protective Order, by the evening of April 27, 2017, the motion and memorandum in
the miscellaneous action were filed under seal.
Soon after Plaintiffs’ filed their response to FCA US’s motion, FCA US filed a combined
supplement to its motion and a motion for sanctions for additional violations (Doc. 178). In its
supplemental motion, FCA US asserts that Plaintiffs’ filing of excerpts from Shina’s deposition
was yet another violation of the Protective Order as the time for FCA US to designate the
deposition testimony as “Confidential” had not yet passed.
The Court allowed Plaintiffs to respond to FCA US’ supplemental motion and said reply
was filed on May 4, 2017 (Doc. 179). In their reply, Plaintiffs assert that the Protective Order
provides a process for notifying the parties that a deposition contains confidential material in order
to invoke the 20-day timeframe and FCA US failed to comply with this process. Accordingly,
Plaintiffs assert they had no indication that FCA US was going to designate any portion of Shina’s
deposition testimony as confidential prior to their filing1.
The Court held a motion hearing in this matter on May 5, 2017. At the hearing, the Court
conducted a thorough review of the information contained in Plaintiffs’ miscellaneous filing in the
Northern District of California and heard argument from both Plaintiffs and FCA US regarding the
documents. Generally, Plaintiffs maintained that the information contained in its filings were in
the public domain and urged the Court to conduct its own internet search for said information.
1
Plaintiffs further explain that FCA US counsel deviated from its practice of declaring portions of
deposition transcripts confidential on the record at the deposition in its handling of Shina’s
deposition. This issue was discussed in great detail at the May 5, 2017 motion hearing.
Page 3 of 6
FCA US pointed to confidential documents that contained the cited information and urged the
Court to award costs associated with its enforcement of the Protective Order and asked the Court to
cease discovery with respect to the production of additional documents.
DISCUSSION
The first issue before the Court is whether Plaintiffs violated provisions of the Amended
Protective Order by disclosing confidential information in their filings in the miscellaneous action
pending in the Northern District of California and their filing and reference to portions of Laith
Shina’s deposition testimony in their response to FCA US’s motion for emergency relief.
With regard to Plaintiffs’ miscellaneous action and its motion to compel and memorandum
in support, the Court finds that portions of this filing contain information (and, on more than one
occasion, quoted language), from documents designated as “Confidential” by FCA US. While
the Court is mindful of Plaintiffs’ argument that the information included in its filings is within the
public domain, the Court finds said argument accurate only to a certain extent. Plaintiffs did not
provide, and the Court was unable to find, public sources that conveyed all of the information FCA
US contends is “Confidential.” Thus, Plaintiffs’ inclusion of said information in its motion and
memorandum in the miscellaneous action was violative of the Protective Order to which all parties
agreed. The Court notes, however, that the material at issue has been sealed and is no longer
publicly available.
The Court is not convinced that Plaintiffs’ reference to and attachment of portions of Laith
Shina’s deposition testimony was violative of the terms of the Protective Order2. Although FCA
2
Despite this finding, the Court is inclined to keep Documents 177 and 177-1 under seal based on
Plaintiffs’ representation FCA US has now provided confidentiality designations. The Court is
aware that Plaintiffs intend to challenge said designations, which may affect the status of said
filings.
Page 4 of 6
US is correct that a party may designate as “Confidential” portions of a deposition transcript within
twenty days of receipt of the transcript, it seems counterintuitive to allow all deposition testimony
of a producing party to be deemed “Confidential” during this time, particularly in light of
paragraph 4(b) of the Protective Order. Although the Protective Order is admittedly unclear as to
how paragraph 4(b) affects the twenty day “grace period” for designations, the Court finds that the
lack of clarity must be decided in Plaintiffs’ favor as it is FCA US’s burden to demonstrate a
violation of the Order.
Finding that Plaintiffs violated the Protective Order by disclosing confidential information
contained in documents designated as such in its filing of a motion to compel in a miscellaneous
action, the Court must determine whether sanctions are appropriate.
“Protective orders encourage parties to disclose sensitive material, lead to better-informed
litigation and decisions, and reduce the costs and delays of litigation. Parties and their counsel
must respect and comply with protective orders or these advantages are lost in current litigation
and threatened in future litigation. Olesky v. General Electric Co., Case No. 6-C-1245, 2014 WL
3820352, at * 7 (N.D. Ill. August 1, 2014) (quoting Tama Plastic Indus. v. Pritchett Twine & Net
Wrap, LLC, 1:11-CV-783-JMS-DKL, 2012 WL 1912578, at *5 (S.D. Ind. May 25, 2012).
Accordingly, courts “have a duty to strictly enforce protective orders in the interests of the parties
and public”; however, sanctions for violations must be “proportionate, practical, and compatible
with other important interests such as deciding claims on their merits, achieving correct decisions,
and maintaining the efficiency of litigation and judicial-decision making.” Id.
In light of the foregoing, and noting that any confidential material has been sealed and is no
longer in the public record, the Court finds that closing document discovery and ordering counsel
to withdraw their motion to compel in their miscellaneous action too harsh a sanction. An
Page 5 of 6
appropriate sanction is to allow FCA US to recover its costs and attorneys’ fees related to
addressing and remedying Plaintiffs’ actions that were violative of the Protective Order. This
includes the reasonable expenses FCA US incurred investigating Plaintiffs’ violation of the
Protective Order and filing its motion for emergency relief (Doc. 170); however, expenses related
to the filing of the supplementary motion should not be included. Counsel for FCA US is
DIRECTED to file a bill of costs, with support thereof, within seven days of the date of this
Order.
IT IS SO ORDERED.
DATED: May 30, 2017
DONALD G. WILKERSON
United States Magistrate Judge
Page 6 of 6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?