Osborne et al v. Billings Clinic et al

Filing 82

ORDER DENYING 49 Motion for Court Order Lifting Any Restrictions on Sharing Depositions and Fruits of Discovery. Signed by Judge Susan P. Watters on 3/9/2015. (EMH, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONT ANA
BILLINGS DIVISION

DALE OSBORNE, as Personal
Representative of the Estate of Sarah
Osborne,

CV 14-126-BLG-SPW

OPINION and ORDER

Plaintiff,
vs.
BILLINGS CLINIC, and UNITED
STATES OF AMERICA,
Defendants.

BILLINGS CLINIC,
Cross-Claimant,
vs.
UNITED STATES OF AMERICA,
Cross-Defendant.

Before this Court is Plaintiff Dale Osborne's Motion for Court Order Lifting
Any Restrictions on Sharing Depositions and Fruits of Discovery, (Doc. 49), where
he requests this Court invalidate a historical agreement between Billings Clinic and
another plaintiff's counsel to allow Osborne to obtain depositions and fruits of
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discovery from a "substantially similar case." (See Doc. 50). After reviewing the
briefs and submissions, this Court denies Osborne's motion for the reasons set
forth below.
I.

Discussion

Osborne's counsel recently learned about Estate of Rachael Hansen v.

Billings Clinic, DV-11-1160, a case that Osborne contends is "substantially
similar" to his case against Billings Clinic. (Doc. 50 at 2). Because of the
similarities, Osborne requests that this Court permit plaintiff's counsel in Hansen,
Craig Daue, to share depositions and fruits of discovery from Hansen with
Osborne. The problem is that Daue entered into a written agreement with Billings
Clinic and agreed to keep documents disclosed by Billings Clinic in discovery
during the Hansen case confidential. (Doc. 50-1 at 8-9). While Daue is willing to
break the agreement, Billings Clinic isn't, and opposes sharing Billings Clinic's
documents or "other fruits of discovery" that counsel in Hansen agreed to keep
confidential. (Doc. 61 at 2).
In support of his motion, Osborne provides the Court with an affidavit of
Daue's thoughts on the matter, (Doc. 50-1), as well as cases that demonstrate the
public policy and the judiciary's endorsement of information sharing in discovery
among counsel. (See gen. Docs. 50 and 64). With all due respect to Mr. Daue, his

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thoughts do not provide this Court with a legal basis to rule. Likewise, none of the
cases provided by Osborne address the current situation before the Court.
Osborne's first argument is that Daue should be allowed to break the
confidentiality agreement with Billings Clinic because "information sharing among
plaintiff's counsel has been widely endorsed by the judiciary." (Doc. 50 at 6).
Osborne pointed this Court to a number of cases where attorney collaboration and
discovery sharing had been sanctioned by various courts. (Id.) Most of the cases
simply analyzed whether a protective order was warranted. See Wilk v. American

Medical Ass'n, 635 F.2d 1295 (7th Cir. 1980); Wardv. Ford Motor Co., 93 F.R.D.
579, 580 (D. Colo. 1982); United States v. Hooker Chemicals & Plastics Corp., 90
F.R.D. 421(W.D.N.Y.1981); Patterson v. Ford Motor Co., 85 F.R.D. 152, 154
(W.D.Tex.1980), Williams v. Johnson & Johnson, 50 F.R.D. 31, 33 (S.D.N.Y.
1970). None of the cases dealt with an out-of-case confidentiality agreement.
Osborne next points the Court to cases holding that blanket protective orders
waste resources and discourage lawsuits. (Doc. 50 at 7). Daue's agreement with
Billings Clinic was not a blanket protective order so those cases are not applicable.
Finally, Osborne points the Court to cases holding that collaboration between
attorneys promotes speedy and less expensive resolution of cases. (Id.). While
this Court agrees with that general proposition, the cases Osborne cited provide no
authority to invalidate a confidentiality agreement between parties not before the
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Court. Perhaps that's not surprising. If courts routinely extended their jurisdiction
to invalidate discovery agreements entered in other cases, it would likely
discourage parties from entering those agreements - and thus facilitating discovery
in the other case - in the first place.
But the Court need not decide here whether it actually has the authority to
invalidate the Hansen confidentiality agreement. This is not a case where a current
party is seeking information that it could only get by obtaining information
produced in another case. It is not even a case where doing so is noticeably more
efficient. Billings Clinic, a party to the confidentiality agreement in Hansen, is
also a party to this case. And it is Billings Clinic's information, not some third
party's, that Osborne seeks to obtain. Thus, there simply is no reason to engage in
motions practice or wrestle with the difficult question of invalidating an otherwise
enforceable confidentiality agreement entered in other litigation. If Osborne wants
to obtain information from Billings Clinic, he may seek it using the appropriate
discovery channels available to him in this case under the Federal Rules of Civil
Procedure. If there is a valid dispute about whether the information should be kept
confidential in this case, the Court will consider that dispute when it arises.

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II.

Conclusion

For reasons state above, Billings Clinic's Motion for Court Order Lifting
Any Restrictions on Sharing Depositions and Fruits of Discovery (Doc. 50) is

DENIED.
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SUSANP. WATTERS
United States District Judge

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