Cooper et al v. Meritor, Inc. et al

Filing 811

ORDER denying Ore Tenus Motion for a Protective Order Regarding University of Oklahoma CSIA Lab Results. Signed by Magistrate Judge Jane M. Virden on 8/28/18. (bfg)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
BRENDA J. COOPER, ET AL.
vs.
MERITOR, INC., ET AL.

PLAINTIFFS
Civil Action No. 4:16-cv-52-DMB-JMV
DEFENDANTS
- Consolidated With -

JOE E. SLEDGE, ET AL.
vs.
MERITOR, INC., ET AL.

PLAINTIFFS
Civil Action No. 4:16-cv-53-DMB-JMV
DEFENDANTS
- and -

KATHERINE LONGSTREET COOKE, ET AL.
PLAINTIFFS
vs.
Civil Action No. 4:16-cv-54-DMB-JMV
MERITOR, INC., ET AL.
DEFENDANTS
- and SRA INVESTMENTS, LLC, ET AL.
vs.
MERITOR, INC., ET AL.

PLAINTIFFS
Civil Action No. 4:16-cv-55-DMB-JMV
DEFENDANTS
- and -

FELICIA WILLIS, ET AL.
vs.
MERITOR, INC., ET AL.

PLAINTIFFS
Civil Action No. 4:16-cv-56-DMB-JMV
DEFENDANTS

_____________________________________________________________________________
ORDER
_____________________________________________________________________________
This matter came before the Court upon the urgent ore tenus motion of Defendants, made
during a recent [789] telephonic status conference on August 23, 2018, for a protective order
prohibiting one of Plaintiffs’ lawyers from receiving certain test result data generated by the
University of Oklahoma, which the University of Oklahoma apparently intends to provide him in
response to his state Open Records Act request. According to the records request, it was made on
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behalf of some residents of the Grenada area and the State of Mississippi, represented to be the
requesting attorney’s clients.1 Briefs on the oral motion were filed at noon on August 24, 2018,
and this Order on the motion was delivered orally into the record that afternoon.
In a nutshell, the Defendants argue that this court should not permit Plaintiffs’ counsel to
receive the documents that he has requested because the documents were produced by the
University of Oklahoma at the request of Defendants’ consulting experts employed in this case in
anticipation of litigation. However, there has been no ruling in this case that documents created by
a public higher educational institution are subject to the consulting expert or work product
privileges, and the Defendants have produced no contract between themselves or their counsel and
any consultant, much less between any consultant and any alleged subcontractor of such
consultant, namely the University of Oklahoma, from which it might be determined in what
capacity University of Oklahoma actually performed any work for any alleged consulting expert
in the instant case.
It is the burden of the party claiming privilege to establish a basis therefor, and Defendants
have offered no evidence thereof. There is simply no adequate basis upon which to found a
determination that test data apparently performed by a public higher educational institution is
subject to protection. On the contrary, if a party voluntarily discloses, without restriction,
information to the public domain that might otherwise have been subject to privilege, such a public
disclosure would surely strip the information of any protection from disclosure it might otherwise
have been afforded. In the instant case, without more information about the nature of the

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As the courts appreciates Defendants’ motion, Defendant does not request that this court direct the University of
Oklahoma to do, or not do, anything that it determines it should do to comply with Oklahoma’s Open Records Act.
However, the Defendants do ask, in the alternative to the principal relief--the protective order--that the court issue an
order declaring that the documents generated by the University of Oklahoma which are in dispute are privileged
matters of consulting experts.

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contractual relationship between the so-called consultants and the alleged subcontractors, there is
no privilege that has been demonstrated to exist at this point.
Furthermore, while the request for documents was made by an attorney in the instant case
and on behalf of some of the residents in the area that is at issue in the instant case, it was also
made by or on behalf of the State of Mississippi, who is not a party here. No authority is provided
to the court in this action for prohibiting the Attorney General or his counsel from receiving that
which the University of Oklahoma has apparently determined it will produce to him under state
law.
Finally, though the undersigned declines to grant the relief requested by the Defendants
here, the undersigned will leave for the parties and the District Judge whether the subject materials
may be used in the instant litigation.

IT IS ORDERED this, the 28th day of August, 2018.
/s/ Jane M. Virden
UNITED STATES MAGISTRATE JUDGE

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