America First Insurance Co v. B I C Corp et al

Filing 53

ELECTRONIC ORDER granting 34 Motion to Deem Documents Produced are Not Subject to the Court's Protective Order. See Memorandum Order attached. Signed by Magistrate Judge Kathleen Kay on 5/30/2012. (jud,Kay, Kathleen)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION

AMERICA FIRST INSURANCE CO.

:

DOCKET NO. 2:11-CV-532

V.

:

JUDGE TRIMBLE

B I C CORP.

:

MAGISTRATE JUDGE KAY

MEMORANDUM ORDER

Pending before this court is a Motion to Deem Documents Produced are Not Subject to
the Court’s Protective Order [doc. 34], filed by plaintiff America First Insurance Co. For the
reasons set forth herein, the plaintiff’s motion [doc. 34] is GRANTED.
Background
1. Protective Order
A protective order is issued when a party is able to show good cause that a protective
order is needed to prevent a specific, credible, potential injury. See FED R. CIV. P. 26(c);
Blanchard & Co. v. Barrick Gold Corp., 2004 WL 737485 at *4-6 (E.D. La. 2004). In this case
a stipulated protective order was issued which would protect “all confidential, proprietary, and/or
trade secret information supplied by BIC in response to the plaintiffs’ demands or requests.”
Doc. 27, p. 1, ¶1. The order provides that documents marked “confidential” by BIC are subject
to the restrictions on disclosure set forth in the protective order.
Additionally paragraph (2) of the protective order provides plaintiff is to motion the court
for an evaluation of a marked document if the plaintiff believes the confidentiality mark is

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inappropriate. Id. at 1-2. This provision gives rise to the instant motion as America First has
challenged BIC’s “confidential” designation of the above described documents.
2. The Current Motion
Plaintiff complains that BIC improperly marked certain documents and they include (1)
copies of complaints filed with the Consumer Product Safety Commission since January 2005
concerning BIC lighters and a listing of all suits filed against BIC during that same time period;
(2) the results of the visual inspection done by BIC employees of the lighter relating to the
incident which is the subject of this lawsuit (report produced as Bates Nos. 000065-00069, and
photographs and attachments in conjunction therewith, produced as Bates Nos. 00001-00036);
and (3) the identity and policy details of all policies of insurance which may provide BIC
coverage for liability resulting from the facts and circumstances that gave rise to this litigation
(produced as Bates Nos. BIC-000060-61). See doc. 34, p. 4; doc. 52, pp. 2, 5.
Regarding information about other lawsuits and complaints with the Consumer Product
Safety Commission, America First suggests that these documents are public records and, as such,
should not be protected. See doc. 34, p. 4. Next, with respect to the results of the visual
inspection of the lighter at issue in this case and the documents prepared by BIC as a result
thereof, America First argues that these are documents “clearly prepared by [BIC] to assist in
responding to a claim(s) in the ordinary course of business and are therefore discoverable and not
subject to protection.” Id. at 5. Finally, America First requests that BIC’s insurance information
be deemed not subject to the protective order because such information is not a “trade secret,
confidential, or commercially sensitive.” Id. at 6.
BIC opposes America First’s motion. Doc. 52. With respect to documents relating to
previous lawsuits and complaints against BIC, it contends that none of the material was

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designated confidential and therefore the protective order does not apply. See id. With respect
to the inspection documents BIC argues that this material is subject to the protective order
because it was prepared in anticipation of litigation. See id. at 2-4. Similarly, BIC contends that
its insurance information, which is of limited relevance in this litigation, should be kept
confidential under the protective order. See id. at 5.
Analysis
Initially, with respect to documents produced by BIC, regarding previous complaints
and/or lawsuits, BIC notes that these documents were not marked “confidential” and are not
subject to the protective order. The documents were thus needlessly included in America First’s
motion and this court finds them not subject to protection in this case.
However, BIC does seek protection of its insurance information and the results of its
visual inspection of the lighter relating to the incident which is the subject of this lawsuit. BIC
designated this material as “COMPANY CONFIDENTIAL” when it produced it to America
First.

See doc. 52, p. 2, 5.

America First has challenged this designation because these

documents “possess no articulated sensitivity that would require protection.” Doc. 34, p. 7. To
defeat this challenge, BIC must show why these documents should be included within the scope
of the protective order. BIC fails to make such a showing.
With respect to the visual inspection documents, BIC argues that these documents are to
be held confidential under the protective order because they were prepared in anticipation of
litigation. See doc. 52, p. 3-4. This is the only reason given by BIC in support of why these
documents should be given protection. See id.
In the district judge’s memorandum order, dated January 1, 2012, he found that “BIC has
failed to prove that the [visual inspection documents were] prepared for and at the direction of an

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attorney in preparation for litigation.” Doc. 51, p. 4. Therefore, BIC’s only argument for
protection has already been refuted by the presiding district judge. Additionally, documents
prepared for the sole purpose of litigation are not expressly included under the protective order;
only documents which contain confidential, proprietary, and/or trade secret information are
protected. See doc. 27. Simply put: BIC offers nothing to indicate to this court that the visual
inspection documents contain information covered by the protective order. For this reason, this
court grants plaintiff’s motion, and deems the visual inspection documents not subject to the
protective order in this case.
Similarly, regarding BIC’s insurance information, America First argues that there is no
basis for this information to be given protection under the protective order and BIC, again, fails
to provide such a basis. In support of designating its insurance information as confidential BIC
states that its insurance information is “irrelevant to the issues at bar” and, further, notes that
evidence of liability insurance is inadmissible as to fault. See doc. 52, p. 5. For these reasons,
and because America First “has shown no reason why [BIC’s insurance information] should not
remain protected within the confines of this litigation[,]” BIC concludes that its insurance
information should be subject to the protective order. Id.
BIC’s argument misses the mark, as it does not suggest why its insurance information
falls within the scope of the express terms of the protective order. Again, BIC has failed to make
any showing that the information it has designated as “confidential” contains any actual
confidential, proprietary, or trade secret information. Therefore, this court is unable to find that
such information is subject to the protective order in this case. America First’s motion is
granted.

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Conclusion
For the reasons discussed herein, it is found America First’s Motion to Deem Documents
Produced are Not Subject to the Court’s Protective Order [doc. 34] is GRANTED and the
documents describe above are deemed not subject to the protective order in this case.
THUS DONE AND SIGNED in Chambers this 30th day of May, 2012.

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