McKellips et al v. Kumho Tire U.S.A., Inc. et al

Filing 42

ORDER memorializing the Court's rulings made during the 7/16/2014 telephone conference addressing the parties' disputed protective order provisions. Signed by Magistrate Judge Teresa J. James on 7/17/2014. (byk)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MEGAN AND JACOB McKELLIPS,
Individually and as Co-Personal
Representatives of the estate of Wesley
Jacob McKellips,
Plaintiffs,
v.
KUMHO TIRE CO., INC., et al.
Defendants.

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Case No. 13-cv-2393-JTM-TJJ

ORDER
On July 16, 2014, at the request of the parties and after reviewing the proposed protective
orders of Plaintiffs and Defendants, the Court conducted a telephone conference over the parties’
disputes regarding two specific protective order provisions. Plaintiffs appeared through counsel,
Chad C. Lucas and Lara Guscott. Defendants appeared through counsel, Rebecca L. Ulisse,
Kenneth J. Duvall, and Ryan C. Hudson. This Order memorializes the Court’s rulings during the
conference.
I.

Plaintiffs’ Proposed Sharing Provision
The first issue raised by the parties was their dispute regarding the inclusion of a sharing
provision in the protective order. Plaintiffs propose a provision allowing designated confidential
information to be disclosed to:
Any attorney representing a party in a personal injury or wrongful death case
against [Defendants] Kumho Tire Co., Inc. and/or Kumho Tire U.S.A., Inc.
wherein it is alleged that the injury or death was caused in whole or part by a tread
separation or tire defect in a Kumho Road Venture tire.
Plaintiffs argue that such a sharing provision in a products liability case promotes efficiencies in
terms of discovery for both plaintiffs’ attorneys and for the defendant, reduces discovery costs,

promotes public safety, and facilitates the identification of discrepancies or inconsistencies in
discovery produced by defendants in different cases. Plaintiffs note that protective orders
including similar sharing provisions have been entered in a number of other product liability cases
in which Plaintiffs’ counsel have been involved. Plaintiffs, however, could not cite any pending
cases against Defendants involving tread separation or tire defect claims, and could cite no cases
from this District in which protective orders were entered with sharing provisions.1
Defendants object to the inclusion of the proposed sharing provision. They argue that there
is no need for the sharing provision proposed by Plaintiffs because the protective order already
contains a provision allowing disclosure to other persons upon the consent of the producing party
and on such conditions as the parties may agree. Defendants do not believe that a sharing provision
is appropriate on the present record and are concerned that any sharing greatly increases the
potential for an inadvertent disclosure of valuable trade secret information that could harm them in
the highly competitive tire industry. They also argue that such sharing provisions are not
appropriate and are disfavored.
After hearing the respective positions of the parties and reviewing the applicable law, the
Court determines that Plaintiffs’ proposed sharing provision should not be included in the parties’
protective order. The proposed provision is a “preemptive” sharing provision. It would essentially
1

The Court notes that Magistrate Judge Bostwick in Cowan v. General Motors Corp., No.
06-1330-MLB, 2007 WL 1796198, at *3–4 (D. Kan. June 19, 2007), entered a protective order that
included a sharing provision. In that case, however, both the plaintiff and the defendant had proposed
sharing provisions to their protective order, but with differing procedures. Although a sharing provision
was allowed in the protective order, the provision was subject to limitations proposed by the defendant,
including a requirement that any attorney involved in collateral litigation contact the defendant’s attorney,
who would then determine whether the collateral litigation involved a substantively similar product and
issues. Id. Judge Bostwick cautioned that “[e]ven in cases such as the present one in which there is or may
be a public interest in the information at issue, ‘[i]t does not necessarily follow . . . that a litigant has an
unrestrained right to disseminate information that has been obtained through pretrial discovery.’” Id. at *4
(quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 31 (1984)).
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allow discovery of Defendants’ designated confidential information by as-yet unnamed plaintiffs
or potential plaintiffs in collateral litigation without any court supervision and without any
opportunity for Defendants to object to the disclosure. Plaintiffs’ proposed sharing provision
would give Plaintiffs’ counsel the sole discretion to decide which attorneys met the criteria for
disclosure of Defendants’ confidential information. It does not require any advance notice be
given to Defendants of those being provided confidential information, or any opportunity for
Defendants to object in advance of the disclosure.
Plaintiffs have failed to convince the Court that such a preemptive sharing provision is
appropriate or necessary at this point. Plaintiffs are not presently aware of any other pending
collateral tire tread separation or defect litigation against Defendants.2 As the Tenth Circuit
instructed in United Nuclear Corp. v. Cranford Insurance Co.,3 “the district court must refrain
from issuing discovery orders applicable only to collateral litigation,” and “a collateral litigant has
no right to obtain discovery materials that are privileged or otherwise immune from eventual
involuntary discovery in the collateral litigation.”4
Rather than allowing the preemptive sharing provision proposed by Plaintiffs, the Court
instead finds that any determination of whether designated confidential information should be
disclosed to attorneys representing parties in other personal injury or wrongful death litigation
should be made on an as-needed or case-by-case basis during the course of this litigation. Like the

2

To the extent there may be other cases in this District in which the parties have mutually agreed to
protective orders including preemptive sharing agreements, these cases are not compelling in this case,
where Defendants strenuously object to such provision.
3

905 F.2d 1424, 1428 (10th Cir. 1990).

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Id.
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court in Petersen v. DaimlerChrysler Corp.,5 this Court is not persuaded that the inclusion of the
proposed sharing provision is either appropriate or necessary, and has concerns that allowing the
inclusion of such a preemptive sharing provision at this point would “open the barn doors” to
disclosure of Defendants’ confidential information to yet-unidentified collateral litigants. Nor
have Plaintiffs convinced the Court that such a sharing provision would promote efficiency. If
Plaintiffs become aware of other product liability cases involving allegations of tire separation or
tire defect against Defendants, then they may raise this issue and the Court will consider it on a
case-by-case basis.
II.

Provisions Regarding the Return of Confidential Information
The second disputed protective order provision was the length of time that Defendants’
attorneys may retain copies of the confidential information following the termination of the
lawsuit. After hearing from counsel on this issue, the Court finds that seven and half years is a
reasonable compromise for the retention of confidential information following termination of the
lawsuit.
Defendants are directed to make the necessary revisions to their proposed Protective Order
in accordance with the Court’s rulings made at the telephone conference and reflected herein and
circulate it to opposing counsel. The revised Protective Order shall be e-mailed to
[e-mail] by July 23, 2014.

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See Petersen v. DaimlerChrysler Corp., No. 1:06 CV 00108 TC PMW, 2007 WL 914738, at *1
(D. Utah Mar. 5, 2007) (rejecting the inclusion of either party’s variant of a sharing provision that would
allow the parties to share discovery with certain parties unrelated to the case), aff’d, 2007 WL 1176785 (D.
Utah Apr. 4, 2007).
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IT IS SO ORDERED.
Dated July 17, 2014, at Kansas City, Kansas.

s/ Teresa J. James
Teresa J. James
U.S. Magistrate Judge

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