Rasnic et al v. FCA US LLC

Filing 53

MEMORANDUM AND ORDER granting 43 Motion for Protective Order. Signed by Magistrate Judge Gwynne E. Birzer on 2/8/18. (adc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LAWRENCE RASNIC, et al.,
Plaintiffs,
v.
FCA US LLC,
Defendant.

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Case No. 17-2064-KHV-GEB

MEMORANDUM AND ORDER
This matter is before the Court on defendant FCA US LLC’s Motion for Entry of
Protective Order (ECF No. 43) pursuant to Fed. R. Civ. P. 26(c). On January 31, 2018,
the Court conducted a telephone conference to discuss the schedule for this case and
clarify the issues presented in the briefs (ECF Nos. 43-45, 49). Plaintiffs appeared
through counsel, Ryan C. Hudson and A. Scott Waddell. Defendant appeared through
counsel, Sharon B. Rosenberg, Craig S. Laird, and Scottie S. Kleypas.
The parties conferred in good faith regarding the terms of a joint protective order
and agreed to most terms. The parties agree that during the course of discovery it may be
necessary to disclose certain confidential and proprietary information, the disclosure of
which could, among other things, allow the parties’ business competitors to gain a
competitive advantage. The parties also assert that disclosure of information protected
under state or federal law would harm the parties and warrants limiting disclosure,
dissemination, and use of the information. For these and other reasons, the parties agree

they have a specific, serious, and substantial interest in protecting the proprietary
information in the discovery materials exchanged in this matter. They further agree that
items within these categories of information may be treated as confidential, protected
from disclosure outside this litigation, and used only for purposes of prosecuting or
defending this action and any appeals. This protection of confidential information will
assist in the discovery process and provide necessary protection for the confidential
material.
The parties disagree, however, regarding two issues: 1) the return of documents
produced under Protective Order at the conclusion of the case; and 2) whether a party
who has inadvertently disclosed privileged information should be required to produce a
privilege log to support its privilege claim. Each party proposes alternative language
addressing these issues. Because Fed. R. Civ. P. 26(c) “confers broad discretion on the
trial court to decide when a protective order is appropriate and what degree of protection
is required,”1 the Court makes the findings below.

1.

Return of Documents at Conclusion of Case

The United States District Court for the District of Kansas has established
“Guidelines for Agreed Protective Orders” and a form “Protective Order”2 which include
a provision requiring the return of confidential documents to the producing party after the
conclusion of litigation. Defendant’s proposed language is consistent with the Court
1

MGP Ingredients, Inc. v. Mars, Inc., No. 06–2318–JWL–DJW, 2007 WL 756645, at *2 (D.
Kan. Mar. 8, 2007) (citing Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984)).
2
These guidelines are available at http://ksd.uscourts.gov/index.php/rules/.

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form’s standard language requiring return of confidential information.
However, because many of Plaintiffs’ counsel practice in the state of Missouri,
Plaintiffs seek to maintain any confidential information in counsel’s files for six years
post-litigation specifically to comply with Missouri Rule of Professional Conduct
(“MRPC”) 4-1.22. MRPC 4-1.22 requires a lawyer to “securely store a client’s file for
six years after completion or termination of the representation.”
Defendant disagrees with Plaintiffs’ analysis of the Missouri ethics rules,
referencing MRPC 4-1.16(d). Defendant argue this rule permits an attorney to retain
client files “only to the extent permitted by a protective order or other law.”(Def.’s Reply,
ECF No. 49, at 2.)

However, the Court does not find this argument particularly

persuasive. MRPC 4-1.16 deals specifically with declining or terminating representation,
and only says the attorney may keep the file to the “extent permitted by other law.”
Neither of the Missouri ethics rules cited by the parties mentions information produced
pursuant to a protective order, and neither party produces binding authority interpreting
the ethics rules in conjunction with confidentially-produced materials.
More persuasive than the Missouri ethics rules are two instructive authorities: 1)
other orders from the District of Kansas, and 2) the apparent procedures in the Missouri
federal courts. First, “[t]he return of documents is a common practice in this district and
in many other districts, as well.”3 Judges in this district have dealt with similar issues,

3

Hilton v. Sedgwick Cty., Kan., No. 15-2021-JAR-KMH; 2015 WL 3904362, at *1 (D. Kan.
June 25, 2015) (citing several other Protective Orders entered in the District of Kansas, by
various judges, which included the provision allowing return of documents) (also citing the

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and when exercising their discretion in the absence of authority requiring otherwise,
Kansas courts generally defer to the district guidelines.4
Second, of particular note are the form Protective Orders used in the federal courts
of Missouri. The form used by Senior Judge Ortrie D. Smith in the Western District of
Missouri5 contains the very same language included in the Kansas form order.6 The sole
difference between the Western District of Missouri form and the Kansas form is that the
Missouri form includes a 60-day deadline for the documents’ return, rather than leaving
the date range blank for the parties to determine. Similarly, in the Eastern District of
Missouri, the form protective order7 includes the following language: “Within 60 days of
the termination of this action, including any appeals, each party shall either destroy or
return to the opposing party all documents designated by the opposing party as
“Confidential,” and all copies of such documents, and shall destroy all extracts and/or
data taken from such documents.”8

following orders from other jurisdictions: Rohrbough v. Harris, 549 F.3d 1313, 1329 (10th Cir.
2008) (discussing protective order requiring return of confidential information “promptly after
the termination” of the action); Weiss v. Allstate Ins. Co., 2007 WL 2377119, at *2 (E.D. La.
Aug. 16, 2007) (requiring return of confidential documents within 30 days of the conclusion of
litigation); A Major Difference, Inc. v. Wellspring Products, LLC, 243 F.R.D. 415, 420 (D. Colo.
2006) (including a provision requiring return of confidential documents within 30 days of the
completion of the action); Gillard v. Boulder Valley Sch. Dist. Re.-2, 196 F.R.D. 382, 389 (D.
Colo. 2000) (reciting court’s standard protective order, including a provision requiring return of
confidential information to the producing party)).
4
See id. (including internal citations).
5
“[Agreed] Protective Order”, available on the United States District Court, Western District of
Missouri website at http://www.mow.uscourts.gov/district/sched_orders.
6
See id., at paragraph 12.
7
“Appendix A: Form Protective Order”, available on the United States District Court, Eastern
District of Missouri website at http://www.moed.uscourts.gov/local-rules.
8
See id., at paragraph 13.

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Given the general practice of the District of Kansas and related case authority,
along with the similar use of the form language in both the Western and Eastern Districts
of Missouri, it does not appear the form language proposed by Defendant runs afoul of
the Missouri ethics rules. Therefore, the Court GRANTS Defendant’s motion to the
extent that the provision addressing return of confidential materials at the conclusion of
litigation shall be included in the Protective Order.

2.

Inadvertent Disclosures

The parties’ second disagreement revolves around inadvertent disclosures. This
Court’s form protective order, paragraph 18, includes the following language:
18.
Inadvertent Disclosure of Confidential Information Covered by
Attorney-Client Privilege or Work Product. The inadvertent disclosure
or production of any information or document that is subject to an objection
on the basis of attorney client privilege or work product protection,
including, but not limited, to information or documents that may be
considered Confidential Information under the Protective Order, will not be
deemed to waive a party’s claim to its privileged or protected nature or
estop that party or the privilege holder from designating the information or
document as attorney client privileged or subject to the work product
doctrine at a later date. Any party receiving any such information or
document must return it upon request to the producing party. Upon
receiving such a request as to specific information or documents, the
receiving party must return the information or documents to the producing
party within [___] days, regardless of whether the receiving party agrees
with the claim of privilege and/or work product protection. Disclosure of
the information or document by the other party prior to such later
designation will not be deemed a violation of the provisions of this Order.

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Defendant’s proposed language follows the Court’s form protective order, and
includes a deadline of one day for the receiving party to return any inadvertently
produced items to the producing party, after receiving notice from the producing party.
While Plaintiffs do not appear to take issue with the addition of the “one day”
deadline, they seek to add the following provision requiring a privilege log by the
producing party:
The party that inadvertently produced the information or document shall,
within five days of notifying the receiving party of the inadvertent
production, produce an appropriately detailed privilege log from which the
other parties and the Court may evaluate the applicability of the claim of
privilege, or work product.
(Pls.’ Resp., ECF No. 45, at 4-5.) Plaintiffs provide no authority for their proposal, but
argue the additional language “simply makes it clear that, as with all other claims of
privilege for discovery materials, the withholding party should provide a privilege log to
support its claim of privilege, thereby allowing the other parties and the Court to properly
evaluate the privilege claim.” (Id. at 5.)
Although the Court understands Plaintiffs’ position, it agrees with Defendant that
requiring a privilege log for an inadvertent production is unnecessary and potentially
burdensome.

In the event a party inadvertently produces information, and the

information is returned as required, the receiving/returning party has the option of
seeking the production of the information through a formal request. At that point, the
party claiming privilege must produce a privilege log under Fed. R. Civ. P. 26(b)(5). For
that reason, it appears Plaintiffs are seeking something that is already covered by the

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federal rules. Plaintiffs provide no authority to convince the Court to deviate from the
Court’s form Protective Order.
Therefore, the Court GRANTS Defendant’s motion to the extent that Defendant’s
proposed clause regarding inadvertent disclosures, which follows the Court’s form order,
will be approved.

3.

Other proposals

Defendant’s form Protective Order includes a number of other suggested edits, but
Plaintiffs did not address any other proposals aside from the two discussed above.
Therefore, finding the remainder of Defendant’s proposals unopposed, Plaintiffs have not
convinced the Court to deviate from the protective order proposed by Defendant.

IT IS THEREFORE ORDERED that for good cause shown under Fed. R. Civ.
P. 26(c), the Court GRANTS Defendant’s motion for protective order (ECF No. 43) as
set forth above. The Court will enter a separate Protective Order consistent with the
rulings herein.

IT IS SO ORDERED.
Dated at Wichita, Kansas this 8th day of February 2018.

s/ Gwynne E. Birzer
GWYNNE E. BIRZER
United States Magistrate Judge

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