Childers v. General Motors Company LLC

Filing 35

ORDER GRANTING Defendant's 22 Motion for Protective Order--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DENISE CHILDERS,
Plaintiff,
Case No. 2:16-cv-14428
District Judge Nancy G. Edmunds
Magistrate Judge Anthony P. Patti

v.

GENERAL MOTORS LLC,
Defendant.
___________________________________/
ORDER GRANTING DEFENDANT’S MOTION FOR ENTRY OF A
PROTECTIVE ORDER (DE 22)
Plaintiff, Denise Childers, a current employee of Defendant General Motors
LLC (“GM”), filed her complaint in this action on December 21, 2016, and an
amended complaint on December 23, 2016, alleging that Defendant discriminated
and retaliated against her on the basis of her race and age in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and failed to make
reasonable accommodations under the Americans with Disabilities Act, 42 U.S.C.
§ 12111 et seq. (DE 1, 4.)1 Plaintiff asks the Court to award compensatory and

also asserted discrimination and retaliation claims under the Michigan
Elliott-Larsen Civil Rights Act, MCL 37.2201 et seq. (DE 4.) However, on

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 Plaintiff

exemplary, damages, as well as damages for pain and suffering, embarrassment,
humiliation, loss of esteem and reputation, and interest, costs and attorney fees.
I.

THE INSTANT MOTION
This matter is before the Court for consideration of Defendant’s Motion for

Entry of a Protective Order (DE 22), Plaintiff’s response in opposition (DE 25),
and Defendant’s reply (DE 29). In its motion, Defendant seeks entry of the
proposed Protective Order attached as Exhibit 1 to its Motion. (DE 22-2.)
Plaintiff is a Senior Auditor in Defendant’s Audit Services division, but is
currently on a medical leave of absence. According to Defendant, as an Auditor,
Plaintiff conducted internal audits within GM to confirm compliance with
company policies and regulatory requirements. Plaintiff has had access through
her employment to a wide-range of Defendant’s documents, correspondence and
other property that contain confidential and proprietary information, including
Defendant’s financial data, audit procedures and audit findings (“Defendant’s
Confidential Information”). Defendant contends that Plaintiff has produced in her
responses to discovery requests numerous documents containing Defendant’s
Confidential Information, including internal communications, presentations, and
memoranda concerning internal audits and projects. Defendant argues that

February 1, 2017, the Court entered an Order declining to exercise supplemental
jurisdiction over Plaintiff’s state law claims, dismissing those claims without
prejudice. (DE 10.)
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Plaintiff has copied or downloaded Defendant’s Confidential Information and that
she intends to use this information in the prosecution of her lawsuit. Defendant
seeks entry of the proposed Protective Order attached as Exhibit 1 to its motion,
which would allow the parties to designate documents, information or tangible
things as confidential if the party determines in good faith that it contains personal,
proprietary or sensitive business information. (DE 22-2.) The proposed Protective
Order further provides that “[a]ny documents or information produced pursuant to
a discovery request or used as an exhibit to a deposition may be designated as
‘confidential by the [sic] either party whether such documents were produced prior
to or after the entry of this Protective Order.” (Id. ¶ 5.) Defendant asserts this
language is necessary to protect Defendant’s Confidential Information in Plaintiff’s
possession or produced by Plaintiff in this matter from unfettered dissemination,
but that the proposed Protective Order will still allow Plaintiff to use the
documents during the course of this lawsuit.
Plaintiff counters that Defendant should not be allowed to designate
information Plaintiff obtained “outside the discovery process” as confidential.
Plaintiff asserts that Defendant’s proposed Protective Order would restrict her
ability to disseminate information gained from sources other than discovery, and
thus improperly infringe upon her First Amendment rights. Plaintiff further argues
that, in any event, Defendant has failed to meet its burden to demonstrate that
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“good cause” exists for entry of a protective order, and specifically fails to explain
how disclosure of this information would potentially harm Defendant if disclosed.
In Defendant’s reply, it asserts that it is seeking to protect documents
produced by either party during the discovery process that contain Defendant’s
confidential, proprietary or commercial information, including those documents
Plaintiff produced back to Defendant in response to Defendant’s discovery
requests. Defendant does not seek to designate as “confidential” information or
documents that Plaintiff obtains through sources independent of Defendant or from
the public record. Defendant notes that the proposed Protective Order does not
prevent Plaintiff from using or disclosing any documents in the course of
prosecuting her claims in this case. Defendant further contends that good cause
exists for entry of the proposed Protective Order because it has demonstrated that
the information at issue contains Defendant’s sensitive and confidential internal
audit information. Thus, Defendant asserts that the proposed Protective Order is
reasonable and does not prejudice Plaintiff’s ability to pursue her claims in this
case.
II.

STANDARD
Federal Rule of Civil Procedure 26(c) provides that for good cause shown, a

court may issue an order “to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense,” including requiring that
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“confidential research, development, or commercial information not be revealed or
be revealed only in a specified way.” Fed. R. Civ. P. 26(c)(1)(G). This Rule
confers broad discretion on the trial court to decide when a protective order is
appropriate and what degree of protection is required. Seattle Times Co. v.
Rhinehart, 467 U.S. 20, 36, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984). The Court may
specify the terms of production, limit disclosure, require that documents be filed
under seal, or take any other action that effectuates the purposes of Rule 26(c).
The party seeking protection bears the burden of demonstrating that there is
good cause for restricting the disclosure of the information at issue. Fed. R. Civ. P.
26(c). For good cause to exist, the party seeking to limit the disclosure of
discovery materials must show that specific prejudice or harm will result if no
protective order is granted, and the moving party cannot rely on mere conclusory
statements. Nix v. Sword, 11 F. App’x 498, 500 (6th Cir. 2001).
III.

DISCUSSION
A. The Proposed Protective Order Properly Seeks to Protect
Information Produced During the Discovery Process
Defendant submitted the proposed Protective Order as Exhibit 1 to its

Motion for Entry of a Protective Order. (DE 22-2.) Defendant asserts that it does
not seek to obstruct or prevent discovery, production or use of documents in this
case. Instead, Defendant seeks entry of a protective order under the provisions of
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Federal Rule of Civil Procedure 26(c) to facilitate discovery while precluding the
unfettered dissemination of Defendant’s confidential, proprietary or commercial
information produced during discovery. Plaintiff contends that Defendant is
“stonewall[ing] Plaintiff’s discovery efforts” and that Rule 26 does not govern a
party’s use of information obtained “outside of the discovery process.”
The proposed Protective Order specifically provides that documents
produced or used by either party that contain confidential information may be
designated as “confidential.” (DE 22-2, ¶¶ 5.) According to Defendant, this
provision was included to address those documents Plaintiff has in her possession
as a result of her current employment with Defendant as a Senior Auditor, and that
she has produced back to Defendant in response to Defendant’s discovery requests,
or will produce, which contain Defendant’s confidential, proprietary or commercial
information. Defendant identified those documents Plaintiff has produced that
contain Defendant’s Confidential Information, including Defendant’s financial
data, internal audit procedures and internal audit findings, as well as those types of
documents it asserts will contain Defendant’s confidential and proprietary
information subject to the proposed Protective Order. (See DEs 22, 29.)
Tellingly, Plaintiff has not disputed that those identified documents contain
Defendant’s confidential information. Indeed, Plaintiff’s counsel admitted in an
email dated August 7, 2017 that “[c]learly, many of the documents Plaintiff
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produced to GM in response to GM’s document requests in this litigation are
confidential documents within the purview of Rule 26(c).” (DE 22-3, Pg. ID 141).
Instead, Plaintiff argues that because she had Defendant’s documents in her
possession before she filed this lawsuit, those documents were obtained “outside
the discovery process” and are therefore outside the ambit of Rule 26(c). Plaintiff
ignores that the documents at issue are Defendant’s internal documents obtained
from Defendant solely through Plaintiff’s employment with Defendant and were
not obtained from an independent source or the public record. The fact that
Plaintiff has these documents in her possession as a result of her employment with
Defendant as a Senior Auditor does not relieve these documents of their
confidential status.
Defendant affirms that it does not seek to designate documents obtained by
Plaintiff through independent sources or from the public record as confidential.
And, such information would not be subject to protection under the express
provisions of the proposed Protective Order in any event. (See DE 22-2, ¶ 6 (“This
Stipulation of Confidentiality shall not apply to any documents or information that
is a matter of public record, provided that such documents or information did not
become a matter of public record due to actions by the opposing party in violation
of this stipulation.”).) Therefore, Plaintiff’s reliance on case law for the
proposition that courts will not restrict the use of documents and information
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obtained from “other sources” “outside the discovery process” are inapplicable to
this motion. See Courier-Journal v. Marshall, 828 F.2d 361 (6th Cir. 1987);
Kirshner v. Uniden Corp. of Am., 842 F.2d 1074 (9th Cir. 1988); Bridge C.A.T.
Scan Assoc. v. Technicare Corp., 710 F.2d 940 (2d Cir. 1983). Rather, Defendant
seeks to designate as confidential and subject to the proposed Protective Order
those GM documents Plaintiff produced back to Defendant in response to GM’s
discovery requests, and other documents produced by either party in discovery as
this litigation proceeds that contain GM’s Confidential Information. Accordingly,
the Court finds that the documents at issue are within the control of Fed. R. Civ. P.
26(c).
B. Good Causes Exists to Enter the Proposed Protective Order
Plaintiff argues that Defendant has failed to establish that “good cause”
exists for a protective order because it has not explained how disclosure of the
confidential information would potentially harm Defendant if disclosed. “To show
good cause, a movant for a protective order must articulate specific facts showing
‘clearly defined and serious injury’ resulting from the discovery sought and cannot
rely on mere conclusory statements.” Nix, 11 F. App’x at 500 (citation omitted).
The Court finds that Defendant has established good cause for entry of the
proposed Protective Order and that the requirement of showing specific harm
should not be strictly applied in this matter. As discussed above, Defendant
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asserts, and Plaintiff does not dispute, that Defendant’s internal audit-related
documents produced by Plaintiff are confidential and worthy of protection.
Specifically, Defendant identified to Plaintiff those documents Plaintiff has
produced which it claims contain its confidential information and would be subject
to the Protective Order. According to Defendant, these documents contain
Defendant’s internal financial and audit-related information. Plaintiff has not
disputed that those documents identified by Defendant contain Defendant’s
confidential information, and thus has waived any argument to the contrary. See
Cheff v. Deutsche Bank Nat’l Trust Co., No. 11-15291, 2013 WL 1914316, at *5
(E.D. Mich. May 8, 2013) (“A party waives opposition to a motion if the party fails
to respond to arguments raised in the motion.”). In fact, as discussed above,
Plaintiff has conceded that “[c]learly, many of the documents Plaintiff produced to
GM in response to GM’s document requests in this litigation are confidential
documents within the purview of Rule 26(c).” (DE 22-3, Pg. ID 141). While it is
true, as Plaintiff states, that Defendant is a public company and its audited
financial statements are publicly disclosed on Defendant’s annual 10-K form, that
fact does not relieve Defendant’s internal financial and audit-related information of
confidential status. “A court may more readily impose restrictions on disclosure of
documents not traditionally made public.” See Waite, Schneider, Bayless &
Chesley Co. L.P.A. v. Davis, No. 1:11-CV-0851, 2012 WL 3600106, at *4 (S.D.
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Ohio Aug. 21, 2012) (citations omitted). Indeed, one could easily envision how
the premature disclosure of internal audit documents─in advance of information
which is audited by an outside firm or before the intended public release date of
such information─could essentially serve as insider information, or could
otherwise affect the value of GM stock.
Moreover, courts in this circuit have circumscribed production of similar
internal financial information of businesses under a protective order upon a
showing of little or no prejudice. See, e.g., Tampone v. Richmond, No. 10-CV11776, 2011 WL 1532152, at *2 (E.D. Mich. Apr. 22, 2011) (company’s financial
information is confidential and will be produced subject to the protective order)
(citing FFDI v. JAG Graphics, Ltd., No. 2:07-CV-744, 2008 WL 2078065, at *5
(S.D. Ohio May 13, 2008) (ordering “all of JAG’s financial books and records”
under a protective order)); EEOC v. Medical Weight Loss Clinic, Inc., No. 07-CV15394-DT, 2008 WL 4813309, at *1 (E.D. Mich. Oct. 31, 2008); see also Landco
Equity Partners, LLC v. City of Colorado Springs, 259 F.R.D. 510, 515 (D. Colo.
2009) (“[P]rotective orders issued pursuant to Rule 26(c) are common in litigation
to protect sensitive information exchanged during the course of discovery,
particularly when the documents reflect confidential financial information.”);
Houbigant, Inc. v. Dev. Specialists, Inc., No. 01 Civ. 7388 LTSGWG, 2003 WL

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21688243, at *3 (S.D.N.Y. July 21, 2003) (collecting cases holding that internal
audit information are trade secrets and thus confidential).
Further, the Court notes that there is little prejudice to Plaintiff, as the
proposed Protective Order does not seek to prohibit the discovery of confidential
information or the availability of such documents to the parties, their counsel,
experts, consultants, mediators or witnesses. Further, the proposed Protective
Order does not preclude the use of confidential materials at trial, to the extent they
are admissible, and does not limit the disclosure of such documents to any federal
or state governments or agencies, or in response to any court order or subpoena.
Plaintiff does not argue that she requires disclosure of this information, beyond
what would be allowed by the protective order, in order to litigate this case.
Further, as Defendant points out, the proposed Protective Order contains a
mechanism to allow either party to designate, or challenge the designation of,
documents as confidential. Moreover, interrogatories or deposition testimony may
be used to establish the means by which Plaintiff obtained any documents for
which confidentiality is disputed, and to explore the degree to which such
documents are publicly available. Accordingly, the Court finds that there is good
cause for entry of the proposed Protective Order.
In entering this Order, the Court wants to make it clear that the parties are
expected to comply with the Protective Order without any future directives
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regarding designation of documents as “Confidential” and subject to the protective
order, if at all possible. The Court notes that Plaintiff complains that Defendant
has not produced a single responsive document in this case due to the
confidentiality designation issue. Without addressing specifically each of the
discovery requests at issue, the Court cautions the parties only to designate
documents as “Confidential” and subject to the protective order in good faith and
after careful review. If this designation is abused by either party, the Court
reserves the right to revisit this issue and further address the Protective Order
provisions, which may include shifting the burden of moving for an order
regarding the “Confidential” designation of specific documents. “A protective
order is always subject to modification or termination for good cause, even where
the parties have consented to its entry.” In re Southeastern Milk Antitrust Litig.,
666 F. Supp.2d 908, 914 (E.D. Tenn. 2009) (internal citations omitted).
Accordingly, for the reasons stated herein, Defendant’s motion is hereby
GRANTED (DE 22), and the Protective Order attached as Exhibit 1 to
Defendant’s motion is hereby ENTERED, subject to corrective language in
paragraph 5, so that it now reads, “‘confidential’ by either party”. The Court
further finds that it would be unjust to award costs or expenses stemming from this
motion pursuant to Federal Rule of Civil Procedure 37(a)(5), as the parties’

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respective arguments were each justifiable and made in good faith, and in light of
the parties’ respective need for a ruling from the Court on this issue.
IT IS SO ORDERED.

Dated: September 26, 2017

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE

Certificate of Service
I hereby certify that a copy of the foregoing document was sent to parties of record
on September 26, 2017, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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