Knight Capital Partners Corporation v. Henkel AG & Company, KGaA
OPINION AND ORDER Granting 43 Motion to Compel, 45 Motion to Extend, 46 Motion to Extend, 50 Motion to Extend; Granting in Part and Denying in Part 55 Motion for Protective Order, 57 Motion to Quash, 57 Motion for Protective Order; and Granting 58 Motion to Compel. Signed by District Judge David M. Lawson. (SPin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
KNIGHT CAPITAL PARTNERS CORP.,
Case Number 16-12022
Honorable David M. Lawson
HENKEL AG & COMPANY, KGaA,
OPINION AND ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL
DISCOVERY, GRANTING IN PART AND DENYING IN PART MOTIONS BY
DEFENDANT AND NON-PARTY HENKEL CORPORATION FOR
PROTECTIVE ORDERS, DENYING HENKEL CORPORATION’S MOTION TO
QUASH SUBPOENA, AND GRANTING RELIEF FROM SCHEDULING ORDER
Discovery disputes bring this case back before the Court. Plaintiff Knight Capital Partners
sued defendant Henkel KGaA (“Henkel Global”) for tortious interference with a business
expectancy and breach of a non-disclosure agreement after Henkel Global allegedly scuttled a threeway deal KCP was brokering among itself, Henkel Corporation (the defendant’s American
subsidiary), and AI Sealing, LLC (AIS), a technology company that held patents on products useful
in the oil production business. KCP served interrogatories and document requests on the defendant
and subpoenaed documents from its American Subsidiary (Henkel US). The defendant and Henkel
US refused to respond to the requests unless KCP agreed to a protective order that contained terms
KCP deemed onerous and unjustified. KCP has moved to compel production. Henkel US moved
to quash the subpoena, and both Henkel companies seek a protective order. Central to their
arguments is the German Federal Data Protection Act, a foreign discovery blocking statute, which
the defendant and Henkel US insist prevents them from turning over much of the information the
After reviewing the materials submitted — including the affidavit from Joachim Bornkamm,
a former German jurist and the defendant’s foreign law expert — the Court is not convinced that the
reach of the German Federal Data Protection Act is as vast as the defendant and Henkel US claim,
or that it prohibits the discovery the plaintiff seeks. With one exception, the terms of the protective
order sought by the defendant and Henkel US are overly restrictive and the Court will not impose
them. The plaintiff’s motions to compel responses to first written discovery requests to defendant
and to compel compliance with subpoena to Henkel US will be granted. The defendant’s amended
motion for entry of protective order and non-party Henkel US’s motion to quash the subpoena or
for protective order will be granted in part and denied in part. The Court will adjust the case
management deadlines to allow for the discovery.
The facts of the case are discussed at length in the Court’s opinion and order denying the
defendant’s motion to dismiss. See dkt. #40 at 2-8. The basic facts alleged are that KCP became
aware of technology patented by AIS in Texas that could be used to clean dirty equipment at
refineries and oil rigs. AIS granted KCP a license for a limited period to develop and sell that
technology. KCP approached AIS to broker a partnership that would include Henkel US, which
would have marketed the patented products under the Henkel brand. As part of the negotiations,
Henkel US executed a nondisclosure agreement that governed the way the parties would handle
confidential information. KCP alleges that defendant Henkel Global induced Henklel US to subvert
the negotiations so that KCP’s license from AIS would expire, and the defendant could come to
terms directly with AIS and cut KCP out of the venture. KCP also alleges that the nondisclosure
agreement was violated along the way.
As part of its formal discovery, KCP served written requests on Henkel Global and served
a subpoena on Henkel US for a variety of documents and internal communications focusing on the
scuttled negotiations and contemporaneous and later communications between those entities and
AIS. Those requests included (1) Henkel internal communications discussing the three-way
technology licensing deal that KCP sought to enter into with Henkel and AIS; (2) communications
between Henkel Global and representatives of AIS; (3) contracts executed between Henkel US or
Henkel Global and AIS; (4) presentations to executives of Henkel Global about the KCP / AIS deal
and any ensuing arrangement between Henkel and AIS; (5) meeting minutes concerning the KCP
/ AIS deal and Henkel’s plans to enter relevant markets addressed by the AIS product; (6) business
plans and project documents relating to the KCP deal and any separate deal with AIS; (7)
communications between Henkel and Magnablend (a contemplated provider of product blending
services under the three-way deal); and (8) meeting agendas, notes, and call logs evidencing any
communications between Henkel and AIS.
According to the plaintiff, Henkel responded with objections to the discovery requests, in
which it (1) claimed in response to almost all of the requests that disclosure of the materials was
restricted under European Union data privacy laws; (2) insisted that KCP execute a protective order
containing certain “standard contractual clauses” that KCP viewed as overly restrictive; and (3)
purported to reserve to Henkel Global the unilateral right to redact any information that it deemed
appropriate from the documents before production. KCP objects to these demands. Another feature
of Kenkel’s proposed protective order to which KCP objects is a two-tiered “attorney eyes only” and
“confidential” designation scheme. KCP contends that Henkel has not pointed to any information
so extremely sensitive that it cannot be disclosed to the principal representatives of the parties to this
lawsuit. Finally, Henkel has insisted on a provision requiring automatic filing of all “confidential”
information under seal; KCP argues that the requirement is not warranted because Henkel has not
advanced any basis in law or fact to justify a broad preemptive closure of the parties’ filings.
“‘The scope of discovery under the Federal Rules of Civil Procedure is traditionally quite
broad.’” Loyd v. Saint Joseph Mercy Oakland, 766 F.3d 580, 593 (6th Cir. 2014) (quoting Lewis
v. ACB Bus. Servs., Inc., 135 F.3d 389, 402 (6th Cir. 1998)). Under Rule 26, parties may obtain
“discovery of any relevant, non-privileged information,” In re Ohio Execution Protocol Litigation,
845 F.3d 231, 236 (6th Cir. 2016) (citing Fed. R. Civ. P. 26(b)(1)), that is “proportional to the needs
of the case.” Fed. R. Civ. P. 26(b)(1). Courts may limit discovery requests for information that is
outside the scope allowed by Rule 26, or is cumulative or easily obtained elsewhere. Fed. R. Civ.
P. 26(b)(2)(C). In addition, “a district court may grant a protective order preventing the production
of discovery to protect a party or entity from ‘annoyance, embarrassment, oppression, or undue
burden or expense.’” In re Ohio Execution Protocol Litigation, 845 F.3d at 236 (quoting Fed. R.
Civ. P. 26(c)(1)).
“To sustain a protective order under Rule 26(c), the moving party must show ‘good cause’
for protection from one (or more) harms identified in Rule 26(c)(1)(A) ‘with a particular and specific
demonstration of fact, as distinguished from stereotyped and conclusory statements.’” Ibid. (quoting
Serrano v. Cintas Corp., 699 F.3d 884, 901 (6th Cir. 2012)). Similarly, “[a] subpoena to a third
party under Rule 45 is subject to the same discovery limitations as those set out in Rule 26.” State
Farm Mut. Auto. Ins. Co. v. Warren Chiropractic & Rehab Clinic, P.C., 315 F.R.D. 220, 222 (E.D.
Mich. 2016) (quotations omitted).
Two of the plaintiff’s objections to Henkel’s protective order demands are easily resolved.
A third requires a bit more discussion.
A. Two-tiered Confidentiality Designation
The Henkel entities propose to designate certain documents as “confidential,” meaning that
after production, the receiving party will limit its use to the present lawsuit and not disclose them
to anyone for any other purpose; and “attorney eyes only,” meaning that only counsel and experts
can see the disclosed documents, but not the receiving attorney’s client. KCP says that the later
designation is too restrictive, but Henkel wants to embargo information that KCP’s principals might
use to compete with it. The nature of the claims in this case suggests that some information
comprising “trade secrets” could be produced by the defendant at some point. Neither side has made
any showing adequate for the Court to find that none of the information could be regarded as such,
principally because the defendant has not yet produced anything in response to the plaintiff’s
discovery requests, and it has not identified with any specificity the extent or substance of any
documents that it may produce. Nevertheless, “[t]he disclosure of confidential information on an
‘attorneys’ eyes only’ basis is a routine feature of civil litigation involving trade secrets.” Paycom
Payroll, LLC v. Richison, 758 F.3d 1198, 1202-03 (10th Cir. 2014) (citing Fed. R. Civ. P.
26(c)(1)(G) (“The court may, for good cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense, including . . . requiring that
a trade secret or other confidential research, development, or commercial information not be
revealed or be revealed only in a specified way.”); In re City of New York, 607 F.3d 923, 935 (2d
The plaintiff’s principal objection to the two-tier designation scheme appears to be its
concern that the defendant will abuse it. But “[t]he purpose of this form of limited disclosure is to
prevent a party from viewing the sensitive information while nevertheless allowing the party’s
lawyers to litigate on the basis of that information,” and the Court “may impose such a restriction
[even] over the objection of a party.” Paycom, 758 F.3d at 1202-03 (citing Fed. R. Civ. P.
26(c)(1)). Moreover, KCP’s concern may be addressed fully by an appropriate provision of the
protective order allowing a party to challenge a designation by notifying the producing party and,
if no agreement is reached on the disputed designation, filing an appropriate motion asking the Court
to de-designate specific information.
The Henkel entities’ insistence on a two-tiered confidentiality designation in the protective
order will be allowed.
B. Automatic Sealing Provision
Henkel’s proposal for the automatic filing of confidential information under seal, on the
other hand, is a non-starter. In Shane Group, Inc. v. Blue Cross Blue Shield of Michigan, 825 F.3d
299 (6th Cir. 2016), the Sixth Circuit made clear that sealing documents is a rare exception to the
general rule of openness in federal court records — an exception that can be justified “‘[o]nly [by]
the most compelling reasons.’” Id. at 305 (quoting In re Knoxville News-Sentinel Co., 723 F.2d 470,
476 (6th Cir. 1983)). Confidentiality designations during discovery generally are unobjectionable.
However, “there is a stark difference between so-called ‘protective orders’ entered pursuant to the
discovery provisions of Federal Rule of Civil Procedure 26, on the one hand, and orders to seal court
records, on the other.” Ibid.
Blanket sealing authorizations are never permitted. Instead, “courts have long recognized
. . . a ‘strong presumption in favor of openness’ as to court records,” and the “burden of overcoming
that presumption is borne by the party that seeks to seal them.” Ibid. (citing Brown & Williamson
Tobacco Corp. v. FTC, 710 F.2d 1165, 1179 (6th Cir. 1983); In re Cendant Corp., 260 F.3d 183,
194 (3d Cir. 2001)). And “even where a party can show a compelling reason why certain documents
or portions thereof should be sealed, the seal itself must be narrowly tailored to serve that reason.”
Ibid. (citing Press-Enterprise Co. v. Super. Ct. of Cal., 464 U.S. 501, 509-11 (1984)). Consequently,
“[t]he proponent of sealing therefore must ‘analyze in detail, document by document, the propriety
of secrecy, providing reasons and legal citations.’” Id. at 305-06 (quoting Baxter, 297 F.3d at 548).
Henkel’s proposal for an automatic sealing provision in the protective order, therefore, is entirely
out of the question.
C. Foreign Data Privacy Laws
The German Federal Data Protection Act broadly protects individuals “against [their] right[s]
to privacy being impaired through the handling of [their] personal data.” German Federal Data
Protection Act § 1(1) (https://www.gesetze-im-internet.de/englisch_bdsg/englisch_bdsg.html).
“‘Personal data’ means any information concerning the personal or material circumstances of an
identified or identifiable individual (the data subject).” Id. § 3(1).
The Henkel entities contend that the German Federal Data Protection Act bars their
production of all of the information that the plaintiff seeks, because all of the documents requested
inherently would include “personal information” of persons who are employed by or do business
with Henkel, such as their names, email addresses, and calendar and phone records. In support of
its motion, the defendant submitted a lengthy declaration by a German legal scholar, Joachim
Bornkamm, in which Bornkamm outlined the substance of various commentaries on German data
privacy laws and concluded that those laws bar the defendant from producing the requested
discovery. The Court disagrees with Herr Bornkamm’s gloss on the subject — at least as it bears
on this litigation — and with Henkel’s limiting arguments.
“It is well settled that [foreign ‘blocking’] statutes do not deprive an American court of the
power to order a party subject to its jurisdiction to produce evidence even though the act of
production may violate that statute.” Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Court
for S. Dist. of Iowa, 482 U.S. 522, 544 n.29 (1987). Here, the German Federal Data Protection Act
does not bar the defendant from disclosing email communications and other business records
included in the plaintiff’s discovery requests, principally because the Act contains an express
exception to the broad prohibitions on personal data disclosure. Section 4c(1) of the Act states:
“In connection with activities which fall in part or in their entirety within the scope
of the law of the European Communities, the transfer of personal data to bodies other
than [member states and entities within the EU or parties to the Agreement on the
European Economic Area] shall be [allowed] even if such bodies do not guarantee
an adequate level of data protection, in so far as . . . the data subject has given his/her
consent, [or] the transfer is necessary . . . for the establishment, exercise or defence
of legal claims.”
German Federal Data Protection Act § 4c(1). The plain language of the Act, therefore, suggests that
there is no conflict between the discovery obligations under the Federal Rules of Civil Procedure
and any provision of the German FDPA.
“In determining foreign law, the court may consider any relevant material or source,
including testimony, whether or not submitted by a party or admissible under the Federal Rules of
Evidence.” Fed. R. Civ. P. 44.1. “The court’s determination [is] treated as a ruling on a question
of law.” Ibid. “The Rule authorizes courts to conduct independent research outside the parties’
submissions in determining foreign law.” de Fontbrune v. Wofsy, 838 F.3d 992, 999 (9th Cir. 2016).
“It is no revelation that courts look to cases, statutes, regulations, treatises, scholarly articles,
legislative history, treaties and other legal materials in figuring out what the law is and resolving
legal issues.” Ibid.
When construing a foreign statute, the Court certainly must presume that the most pertinent
and authoritative source on the scope and import of any foreign law is the plain language of the
statute itself. And any exercise in statutory construction “must begin with the plain language of the
statute because the ‘language of the statute is the starting point for interpretation, and it should also
be the ending point if the plain meaning of that language is clear.’” Michigan Flyer LLC v. Wayne
Cty. Airport Auth., 860 F.3d 425, 428 (6th Cir. 2017) (quoting United States v. Choice, 201 F.3d
837, 840 (6th Cir. 2000)); see also SEC v. Gibraltar Global Securities, Inc., No. 13-2575, 2015 WL
1514746, at *2 (S.D.N.Y. Apr. 1, 2015) (“[S]tatutory construction generally begins with an analysis
of the language of the statute and, if that language is clear, ends there as well. This principle applies
to interpretation of foreign as well as domestic law.”) (citing Hughes Aircraft Co. v. Jacobson, 525
U.S. 432, 438 (1999)).
The statute does not expound any definitions of pertinent phrases such as “necessary” and
“legal claims,” and the parties have not pointed to any authoritative legal rulings in any jurisdiction
construing them. Therefore, the Court must start by assigning those terms their ordinary meanings
and construing the statute in accord with its plain language and those ordinary meanings. In this
case, information concerning the defendant’s communications with the plaintiff and third parties
about the contemplated technology deal certainly will be “necessary” to the adjudication of the
claims of tortious interference by any sensible construction of the plain language of the statute.
Moreover, it is unlikely that the information the plaintiff seeks will involve “personal” data of the
disclosing entities. The plaintiff does not seek intimate, personal details of the defendant’s
employees. The requests, sensibly read, call only for ordinary-course-of-business communications
that are typical of the day-to-day business operations of a commercial (i.e., not “personal”)
The defendant’s foreign law expert sees things differently. He opines that: (1) “responding
to pre-trial discovery in a U.S. process does not involve the ‘protection of legal claims before a
court’”; (2) “to rely on the ‘protection of legal claims’ exception, the discovery request has to have
been made in compliance with the Hague Convention on the Taking of Evidence Abroad in Civil
or Commercial Matters”; (3) “for German law purposes, participation in pre-trial discovery, by its
very nature as an essentially non-judicial process, does not constitute a proceeding ‘before a court’”;
and (4) “under the terms of § 4c itself, the disclosure must be ‘necessary’ to defend legal claims in
a court of law,” but “the term ‘necessary’ is defined not b[y] reference to U.S. procedural law, but
instead pursuant to German law”; and “disclosure under German law is ‘necessary’ only if
acceptable under applicable European data protection law.” Def.’s Am. Mot., Ex. J, Joachim
Bornkamm decl. ¶ 28 (Pg ID 2056-58). These arguments fail for several reasons.
Initially, the contentions that discovery proceedings in this case do not implicate legal
claims, and are not proceedings “before a court,” betray a fundamental misunderstanding of the
American civil justice system. Discovery in this action is governed by the Federal Rules of Civil
Procedure, principally Rules 26 through 37. Those rules “govern the procedure in all civil actions
and proceedings in the United States district courts.” Fed. R. Civ. P. 1 (emphasis added). Although
parties are given considerable latitude in conducting discovery, the discovery methods ordained by
Rules 26 through 36 consist of formal discovery, which, fundamentally is court-supervised
Next, the circular proposition that disclosure under the litigation exception is permitted only
where the disclosure is accompanied by all of the protections contemplated under the Data
Protection Act defies its plain text. See German Federal Data Protection Act § 4c(1) (permitting
disclosure under the litigation exception “even if [the recipient does] not guarantee an adequate
level of data protection” (emphasis added)). Next, the expert’s opinion that discovery is permissible
only when conducted according to the Hague Convention is flatly contrary to the Supreme Court’s
decision in the Aerospatiale case:
An interpretation of the Hague Convention as the exclusive means for obtaining
evidence located abroad would effectively subject every American court hearing a
case involving a national or a contracting state to the internal laws of that state.
Interrogatories and document requests are staples of international commercial
litigation, no less than of other suits, yet a rule of exclusivity would subordinate the
court’s supervision of even the most routine of these pretrial proceedings to the
actions or, equally, to the inactions of foreign judicial authorities.
482 U.S. at 539. The defendant’s expert did not cite any judicial decision of any court in any
jurisdiction endorsing his view of the law, and the Court is not bound by his synopsis of scholarly
commentary on the topic. Gibraltar Global Securities, Inc., 2015 WL 1514746, at *2 (“The opinion
of an expert as to foreign law does not bind the court, even if it is uncontradicted.”). Moreover, even
the defendant’s expert conceded in a footnote to his exegesis that “[s]ome commentators disagree”
with his analysis. Bornkamm decl. ¶ 28 n.43 (Pg ID 2057).
Finally, the defendant’s contention that the Court must construe the Data Protection Act by
resorting solely to interpretations of German law by German authorities is simply wrong. “In
determining foreign law, the court may consider any relevant material or source, including
testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence.”
Fed. R. Civ. P. 44.1 (emphasis added). And the Court certainly has both the authority and the duty
to construe the meaning of the statute in the first instance, informed by the ordinary principles of
statutory construction and by reference to the plain language of the statute itself. See Marbury v.
Madison, 5 U.S. 137, 177 (1803) (“It is emphatically the province and duty of the judicial
department to say what the law is.”). “Those who apply the rule to particular cases, must of
necessity expound and interpret that rule”; if “two laws conflict with each other, the courts must
decide on the operation of each.” Ibid.; see also Aerospatiale, 482 U.S. at 542 (“It is well known
that the scope of American discovery is often significantly broader than is permitted in other
jurisdictions, and we are satisfied that foreign tribunals will recognize that the final decision on the
evidence to be used in litigation conducted in American courts must be made by those courts.”).
“As the party seeking to rely on German and European Union law, it is [the defendant’s]
burden to demonstrate that these laws bar production of the documents at issue.” BrightEdge Techs.,
Inc. v. Searchmetrics, GmbH., No. 14-01009, 2014 WL 3965062, at *4 (N.D. Cal. Aug. 13, 2014).
Other district courts likely would reach the same conclusion. Id. at *6 (“Having weighed the
relevant factors, the Court finds that they weigh in favor of compelling Searchmetrics to supplement
its interrogatory responses and document production to include information and documents it
withheld on the basis of international privacy protection laws.”).
Moreover, even if the Court assumes that there is some conflict between domestic and
foreign law governing the defendant’s disclosure of the requested data, the factors suggested by the
Restatement of Foreign Relations Law of the United States (Revised) § 437(1)(c) weigh in favor of
compelling the disclosure. Those factors are: (1) the importance to the litigation of the documents
or other information requested; (2) the degree of specificity of the request; (3) whether the
information originated in the United States; (4) the availability of alternative means of securing the
information; and (5) the extent to which noncompliance with the request would undermine important
interests of the United States, or compliance with the request would undermine important interests
of the state where the information is located. Aerospatiale, 482 U.S. at 544 n.28. Application of
those factors to the specific discovery requests satisfies “the concept of international comity[, which]
requires in [the discovery] context a more particularized analysis of the respective interests of the
foreign nation and the requesting nation” as they bear on the question whether discovery should be
allowed or barred. Id. at 543. Let’s take each factor in turn.
First, the documents and information requested here certainly are important to the resolution
of the plaintiff’s claim for tortious interference with a business expectancy, because they concern
discussions that Henkel and its employees and principals had with KCP and third parties about
entering into (or not) an agreement to market products for cleaning oil refinery equipment based on
technology owned and to be supplied by KCP’s technology partner. The information requested goes
to the heart of the claims. This factor therefore favors compelling the disclosure of the documents
requested, notwithstanding that some of those documents may include some personal information
of foreign citizens.
Second, the plaintiff’s requests are adequately specific and seek disclosure only of those
documents evidencing discussions pertinent to the contemplated three-way partnership during the
approximately two-year span of the negotiations. The plaintiff’s requests do not demand any
substantial mass of unrelated personal information of, for example, employees, customers, or thirdparty partners of Henkel Global that were uninvolved with the negotiations and the technology
discussed in the course of the proposed deal. This factor does not weigh heavily against disclosure,
and likely favors compelling the disclosure.
As to the third factor, it is impossible to discern how much of the information requested may
have originated in the United States, since no documents have been produced, identified, or
described by the defendant with any specificity. However, it is evident from the nature of the
requests that at least some of the documents probably originated here, since some requests concern
communications between Henkel Global and domestic counter-parties to the deal, which include
KCP, KCP’s technology partner (AIS), Magnablend (the proposed US “blending” contractor), and
Henkel US (the purportedly independent domestic affiliate of Henkel Global). This factor,
therefore, is either neutral or weighs slightly in favor of compelling disclosure.
Fourth, the defendant has not suggested any plausible alternative means for obtaining the
requested information, so this factor weighs heavily in favor of compelling disclosure.
Fifth, suffering non-compliance with the plaintiff’s discovery requests would fatally
undermine the important interest of the United States in rendering an adequately informed decision
on the rights of a civil plaintiff before this Court. BrightEdge, 2014 WL 3965062, at *5 (“The
United States obviously has a substantial interest in ‘vindicating the rights of American plaintiffs.’”
(quoting In re Air Crash at Taipei, 211 F.R.D. 374, 379 (C.D. Cal. 2002)). That interest — which
will be advanced with due regard to appropriate protections against unwarranted disclosure of any
sensitive information that may be disclosed, under the terms of a reasonably framed protective order
— is not outweighed by the concerns of the German government with protecting its citizens from
unjustified compromises of their personal information, particularly where the statute on point
expressly allows disclosures that are necessary for the purposes of litigation. See ibid. (“Conversely,
the German interest in enforcing the blocking statute[s] at issue here ‘is entitled to less deference
since it is not a substantive rule of law at variance with the law of the United States, but rather one
whose primary purpose is to protect its citizens from discovery obligations in foreign courts.’”
(quoting In re Air Cargo Shipping Servs. Antitrust Litig., No. 06-1775, 2010 WL 2976220, at *2
(E.D.N.Y. July 23, 2010)).
The defendant’s concerns premised on other German statutes that impose civil and criminal
penalties for violations of the Data Protection Act are not sufficient to move this Court to disregard
its duty to render a fully informed disposition of this case, particularly where a sensible construction
of the statute in question reveals that the disclosure would not violate the Act, and the defendant has
not pointed to any information to suggest that it faces any plausible risk of an enforcement action
by German authorities. See Reinsurance Co. of Am. v. Administratia Asigurarilor de Stat (Admin.
of State Ins.), 902 F.2d 1275, 1282 (7th Cir. 1990) (“‘The fact that foreign law may subject a person
to criminal sanctions in the foreign country if he produces certain information does not automatically
bar a domestic court from compelling production.’” (quoting United States v. First Nat. Bank of
Chicago, 699 F.2d 341, 345 (7th Cir. 1983)).
The defendant also contends that, “according to some legal authorities,” the German
Telecommunications Act forbids employers from accessing employee email “where the employer
allows the use of corporate email for private purposes.” But that concern carries little weight here
because the nature of the plaintiff’s document requests does not suggest that the defendant’s
responsive production will include any email sent by anyone for any private purpose.
Finally, the defendant has cited no authority for the proposition that its responsive production
must be conditioned on the plaintiff’s execution of a laundry list of model protective clauses
proffered by the defendant. The proposed language is taken from extensive and apparently
aspirational language propounded by the European Commission as guidelines for compliance with
the Data Protection Act in cases where full compliance is required before any disclosure may
proceed. Here, full compliance with those aspirational conditions plainly is not required, because
the statute expressly permits disclosure under the litigation exception “even if [the recipient does]
not guarantee an adequate level of data protection.” German Federal Data Protection Act § 4c(1).
Neither Henkel Global nor its American subsidiary has advanced sufficient reasons for
resisting the production of documents called for in KCP’s written discovery requests to the
defendant and the subpoena directed to Henkel US. The Court, therefore, will grant the motions to
Although the issuance of a protective order that guards the parties’ information produced in
discovery so that it is not misused by strangers to this litigation is prudent, many of the conditions
demanded by the defendant and non-party Henkel US are not warranted or reasonable. Germany’s
data protection law will not block the production of the information requested by KCP in its
discovery requests. Because of the delay in the production of documents, relief from the scheduling
order is warranted.
Accordingly, it is ORDERED that the plaintiff’s motions to compel responses to first written
discovery requests [dkt. #43] and to compel compliance with its subpoena by Henkel Corporation
[dkt. #58] are GRANTED. The defendant fully must respond to the plaintiff’s written discovery
requests, and Henkel Corporation must respond to the subpoena, on or before December 21, 2017.
It is further ORDERED that the defendant’s amended motion for entry of protective order
[dkt. #55] is GRANTED IN PART AND DENIED IN PART. A separate protective order will
It is further ORDERED that non-party Henkel Corp.’s motion to quash the subpoena is
DENIED, and its request for a protective order [dkt. #57] is GRANTED IN PART AND DENIED
It is further ORDERED that the motions for relief from the scheduling order [dkt. #45, 46,
50] are GRANTED. An amended Case Management and Scheduling order will enter.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: November 30, 2017
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on November 30, 2017.
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