Nunn v. Dillon Auto Sales, Inc.

Filing 47

ORDER denying 41 Defendant's Motion for Protective Order. Having considered the evidence and arguments of the parties, the court finds Defendanthas failed to carry its burden of showing its proposed protective order is needed for this lawsuit. Ordered by Magistrate Judge Cheryl R. Zwart. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LORENZO NUNN,
Plaintiff,

4:14CV3220

vs.

ORDER

DILLON AUTO SALES, INC.,
Defendant.

This matter is before the court on Defendant’s Motion for Protective Order. (Filing No.
41). For the reasons set forth below, the motion will be denied.
BACKGROUND
Plaintiff Lorenzo Nunn filed his complaint against Dillon Auto Sales (“Dillon Auto”) on
October 6, 2014, alleging hostile work environment and employment discrimination. (Filing No.
1-1). Nunn specifically alleges Defendant ordered Plaintiff’s supervisor, Terry Troutner, to fire
African American employees and that the defendant made other discriminatory comments
toward African American employees. (Filing No. 1-1 at CM/ECF pp. 2–3).
Dillon Auto has another case pending in this court which is important to understanding
the pending motion for protective order: Dillon Auto Sales v. Troutner, 4:14-cv-104-RGK-CRZ.
In Troutner, Dillon Auto, as plaintiff, alleges its former general manager, Terry Troutner,
defrauded and wrongfully converted funds from the business.

On December 19, 2014, the

parties in Troutner filed a joint stipulation for a protection order. The proposed protective order
included attorney’s eyes only provisions. (Filing 28). The protective order was later entered as
proposed. (Filing 29).
In the current case, during a deposition of Nunn, defense counsel read statements from
Troutner’s deposition taken in the other case and asked Nunn whether Troutner’s representations

were accurate. Thereafter, counsel for Nunn requested a copy of Troutner’s deposition to
provide context.
Purportedly based on this request, Defendant argues this court should enter a nearly
identical protective order in this case to protect any trade secret information that may be divulged
in future depositions. The proposed order would allow either party to designate data, documents,
or information as “Confidential for Lawyers Only” and limits the qualified viewers to counsel
and their staff, or to any other person who is stipulated by the parties to be a “qualified person.”
(Filing No. 43-1 at CM/ECF pp. 4–5). The definition of “qualified person” does not include the
parties themselves. (Id.).
The defendant argues a protective order will serve to establish a procedure which allows
either party to designate a deposition as confidential if trade secrets, confidential business
information, or sensitive employee information is divulged.

The defendant argues such a

protective order is warranted “[d]ue to the sensitive and confidential business information and
sensitive and confidential employee information that could be asked in the upcoming
depositions.” (Filing No. 42-1 at CM/ECF p. 1). Defendant states the protective order would not
preclude opposing counsel from asking about sensitive information in the deposition, and would
only set forth a procedure for both parties to follow if sensitive confidential information was
divulged and it becomes necessary to seal the depositions.
Plaintiff opposes the use of a protective order in this case, arguing that the nature of
Plaintiff’s claims do not concern sensitive or confidential information. Plaintiff reasons he was a
salesman and did not have access to confidential business information nor is the disclosure or
such information relevant to his claims. He states he has not sought any confidential information
in the course of this lawsuit. Plaintiff also argues that the defendant has failed to provide any
legitimate reason for the protective order.

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ANALYSIS
This court recently addressed the purpose and standard for an AEO designation in
Bussing v. COR Clearing, LLC, no. 8:12cv238, 2015 WL 4077993 (D. Neb. July 6, 2015).
The court may enter a protective order which permits certain discovery to be seen
by only counsel. An “attorneys eyes only” protective order prevents a party from
viewing the opposing party's sensitive business information while allowing the
parties' lawyers to litigate on the basis of that information. Paycom Payroll, LLC
v. Richison, 758 F.3d 1198, 1202–03 (10th Cir.2014) (quoting In re City of New
York, 607 F.3d 923, 935 (2d Cir.2010)). But limiting disclosure of discovery to
the attorneys is appropriate only in very limited situations. It is a drastic remedy
because “it limits the ability of the receiving party to view the relevant evidence,
fully discuss it with counsel, and make intelligent litigation decisions.” Ragland
v. Blue Cross Blue Shield of N. Dakota, 2013 WL 3776495, at *1 (D.N.D. June
25, 2013). And it “limits the ability of a party to provide needed assistance to
counsel,” (Ragland, 2013 WL 3776495, at *1), which may result the in the denial
of fundamental due process rights. Martinez v. City of Ogden, 2009 WL 424785,
at *3 (D.Utah Feb. 18, 2009). An “attorneys eyes only” protective order “should
not be authorized simply because one of the parties would prefer that certain
information not be disclosed to an opposing party.” Ragland, 2013 WL 3776495,
at *2.
Bussing v. COR Clearing, LLC, No. 8:12CV238, 2015 WL 4077993, at *2 (D. Neb. July 6,
2015).
The party seeking an AEO designation has the burden of proving the information sought
is a trade secret, confidential research, development, or commercial information and that its
disclosure to the opposing party might be harmful. Id. If the party seeking protection meets its
burden, the party opposing the designation must prove the information is necessary and relevant
to the action. Id. “Where discovery of confidential commercial information is involved, the
court must ‘balance the risk of disclosure to competitors against the risk that a protective order
will impair prosecution or defense of the claims.’” Id. at *2 (quoting Nutratech, Inc. v. Syntech
(SSPF) Int'l, Inc., 242 F.R.D. 552, 555 (C.D.Cal.2007)).
Other than stating that it wishes to protect trade secrets and confidential business
information, the defendant has submitted no evidence explaining why an attorney’s eyes only
order is important to this case or how sensitive information may be relevant or divulged in the

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course of this litigation and to Defendant’s detriment. In contrast, Plaintiff argues it is unlikely
that any confidential or trade secret information will be brought to light in this litigation, and
therefore there is no reason to enter an attorneys eyes only protective order in this case. 1
Although the defendant argues a nearly identical protective order was entered in
Troutner, the court notes the nature of the cases are very different: Troutner involves claims of
fraud against the former general business manager of Dillon’s four locations, while this case
involves allegations of employment discrimination against a sales-level employee.

And in

Troutner, protective order was presented to the court on the parties’ stipulation. In this case,
Plaintiff Nunn opposes Dillon Auto’s motion.
Having considered the evidence and arguments of the parties, the court finds Defendant
has failed to carry its burden of showing its proposed protective order is needed for this lawsuit.
Accordingly,
IT IS ORDERED that Defendant’s motion for a protective order, (filing no. 41), is
denied.
Dated this 6th day of April, 2016
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

1

The court notes that as proposed, the protective order would allow either party to
designate a deposition or document as “Confidential Lawyers Only” based upon a good faith
determination. But in the event the opposing party disagrees with the designation, it shall
carry the burden of proving the protection should not exist. The defendant has not shown
that this switching of the burdens is warranted in this case.

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