Woodmen of the World Life Insurance Society v. US Bank National Association

Filing 191

ORDER - U.S. Bank's Motion To Prevent Disclosure Of Confidential Information Without Further Clarification And Information Sufficient To Allow Objection To Be Made 161 is denied. Woodmen's Motion To Disclose Confidential Information To O ther Short Term Bond Fund Participants And For Rule 37 Sanctions 164 is granted in part and denied in part. The court finds Woodmen's notice compliant with the Amended Protective Order. Woodmen's request for Rule 37 sanctions is denied. Ordered by Magistrate Judge Thomas D. Thalken. (KBJ)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
WOODMEN OF THE WORLD LIFE
INSURANCE SOCIETY,
Plaintiff,
v.
U.S. BANK NATIONAL ASSOCIATION,
et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

8:09CV407
ORDER

This matter is before the court on U.S. Bank’s Motion To Prevent Disclosure Of
Confidential Information Without Further Clarification And Information Sufficient To Allow
Objection To Be Made (Filing No. 161) and Woodmen’s Motion To Disclose Confidential
Information To Other Short Term Bond Fund Participants And For Rule 37 Sanctions
(Filing No. 164). The parties have submitted briefs (Filing Nos. 162, 165, 167, 174) and
indexes of evidence (Filing Nos. 163, 166, 168, 175) in support of their respective
positions.

BACKGROUND
On May 25, 2011, Woodmen of the World Life Insurance Society (Woodmen) sent
defendants U.S. Bank National Association (U.S. Bank) and Emile C. Busse, Jr. (Busse)
notice of Woodmen’s intent to disclose documents designated by U.S. Bank as
Confidential to “[c]ertain board members, trustees, employees, and advisors involved with
and/or representatives of participants in U.S. Bank’s securities lending program.” See
Filing No. 163 - Ex. 1. U.S. Bank responded to Woodmen stating U.S. Bank objected to
the intended disclosure for two reasons: the description of those to whom the disclosure
was to be made was insufficient under the Amended Protective Order (Filing No. 145), and
Woodmen’s notice failed to identify the confidential documents to be disclosed. See Filing
No. 163 - Ex. 2. U.S. Bank reminded Woodmen that “no such disclosure may occur until
Woodmen obtains the prior approval of the Court or of U.S. Bank.” Id.

Prior to filing the current motions, counsel for Woodmen and U.S. Bank conferred
during a telephone conference on May 31, 2011, in an effort to reach an agreement as to
the disclosure.1 See Filing Nos. 162 and 165. Woodmen followed up on June 1, 2011,
with correspondence to U.S. Bank that included a “List of Short-Term Bond Participants
and people to whom Woodmen may disclose USB documents marked ‘Confidential.’” See
Filing No. 166-1 - Ex. C. U.S. Bank responded to Woodmen by email, stating the
supplemental information was insufficient. See Filing No. 166-1 - Ex. D.
Unable to resolve the matter between themselves, on June 1, 2011, U.S. Bank filed
its motion asking the court to prevent disclosure under Woodmen’s May 25, 2011, notice
and to require Woodmen
to provide the name and address, if known, or, if not, then the
employer of, position, and title of the person to whom
information will be disclosed and to provide at least a
substantive description of the information to be disclosed to
that person in its 5-day notice under ¶ 6 of the Amended
Protective Order, and in any further such notice.
See Filing No. 162 - Brief p. 2. U.S. Bank contends Woodmen has failed to provide a
reasonable description of the persons to which Woodmen intends to disclose U.S. Bank’s
confidential documents. Id. U.S. Bank further contends Woodmen has failed to identify,
or to provide even a general description of the confidential information it intends to
disclose. Id. See also Filing No. 167 - Brief p. 5. U.S. Bank argues it is therefore unable
to determine whether or not Woodmen’s intended disclosures are objectionable. Id.
On June 10, 2011, Woodmen responded to U.S. Bank’s motion and filed its own
motion seeking an order holding Woodmen’s notice of its intended disclosure of
confidential information sufficient under the provisions of the Amended Protective Order.
See Filing Nos. 164 - Motion. Woodmen contends its original notice, along with its
supplemental information, provide a “reasonable description” of the board members,
trustees, employees, or advisors of the Short Term Bond Fund participants to which
Woodmen intends to disclose the confidential information, as required by the Amended

1

Counsel for Busse also participated in the telephone conference but Busse did not participate in
briefing the m otions.
2

Protective Order. See Filing No. 174 - Reply p. 7. Woodmen further argues the Amended
Protective Order does not require the parties to identify the documents to be disclosed and
U.S. Bank is unable to cite any such provision in the order. Id. at 10. Woodmen contends
U.S. Bank’s designation of nearly all of the documents it produced as “Confidential”
created the problem of uncertainty. “Having chosen this ill-advised strategy, U.S. Bank
should not be permitted to remedy this mistake by shifting the burden to Woodmen and
forcing Woodmen to cull through hundreds of thousands of documents and pick, choose
and identify the ones Woodmen intends to disclose or discuss with third parties.” See
Filing No. 174 - Reply p. 11. Woodmen insists the task would be “practically impossible”
and would “cause Woodmen’s counsel to reveal their mental thoughts and processes,
thereby giving U.S. Bank an unfair strategic advantage.” See Filing No. 165 - Brief p. 6.
Moreover, Woodmen argues “U.S. Bank’s motion is procedurally improper and should be
summarily overruled.” Id. at 7. Woodmen contends U.S. Bank, by filing its preemptive
motion, failed to follow the provisions of the Amended Protective Order which provide that
the party seeking to disclose confidential documents must get the court’s approval upon
objection. Id. Woodmen further contends U.S. Bank’s motion is essentially either a motion
for a protective order to prevent discovery by Woodmen, or a motion to amend the
Amended Protective Order by adding provisions or terms not previously included. Id. at
7-8. Finally, Woodmen seeks Rule 37 sanctions against U.S. Bank and asks the court to
award Woodmen attorney’s fees on the basis that U.S. Bank’s objections “lack any basis.”
See Filing No. 164 - Motion p. 2.

ANALYSIS
A. Identity of Individuals
The provision of the Amended Protective Order at issue in this discovery dispute is
paragraph 6, which states:
Each person appropriately designated pursuant to paragraphs
4(f), 4(g), 4(h) and/or 4(i) above to receive and/or review
Confidential information shall execute a “Written Assurance” in
the form attached as Exhibit A prior to receiving and/or
reviewing any such document. Opposing counsel shall be
3

notified at least 5 business days prior to disclosure to any such
person who is known to be an employee or agent of, or
consultant to, any competitor of or any customer of the party
whose designated documents are sought to be disclosed.
Such notice shall provide a reasonable description of the
outside independent person to whom disclosure is sought
sufficient to permit objection to be made. If a party objects in
writing to such disclosure withing 5 business days after receipt
of notice, no disclosure shall be made until the party seeking
disclosure obtains the prior approval of the Court or the
objecting party.
See Filing No. 145 - Amended Protective Order p. 2-3.
The language of the Amended Protective Order does not specifically require notice
to opposing counsel of an intended disclosure of confidential documents to other
participants in the Short Term Bond Fund or the U.S. Bank securities lending program.
However, the court implied otherwise in its order granting, in part, Woodmen’s motion to
amend the original protective order. In discussing its decision to allow amendment of the
Protective Order to add “[b]oard members, trustees, employees, or advisors of other
participants in the US Bank securities lending program” and “[o]ther potential witnesses or
members of the Short Term Bond Fund at issue in this case,” paragraphs 4(h) and (i), to
the categories of individuals to which access to confidential documents is limited, the court
noted that “adequate protections will remain in place including the Written Assurance and
the 5-day notice provisions of paragraph 6.” See Filing No. 144 - Order p. 8; Filing No. 145
- Amended Protective Order p. 2. In doing so, the court alluded to a 5-day notice
requirement for disclosure to individuals belonging to the added subsections. The court
recognizes paragraph 6 could have been more artfully phrased to more adequately
address the amendments to paragraph 4.

However, Woodmen appears to have

interpreted the Amended Protective Order to require such notice, as it sent notice to U.S.
Bank on May 25, 2011, stating: “Pursuant to paragraph 6 of the Amended Protective
Order issued by Judge Thalken on April 26, 2011, please be advised that Woodmen
intends to disclose documents designated by U.S. Bank as Confidential to the following
persons: Certain board members, trustees, employees, and advisors involved with and/or

4

representatives of participants in U.S. Bank’s securities lending program.” See Filing No.
163 - Ex. 1.
While both Woodmen and U.S. Bank appear to interpret the Amended Protective
Order as requiring notice to the opposing party of any intentions to disclose confidential
documents, they clearly disagree as to the substance of that notice. Woodmen argues the
“reasonable description” language applies only to
outside independent persons (i.e., persons not currently or
formerly employed by, consulting with, or otherwise associated
with any party) who are retained by a party or its Attorneys
to provide assistance as mock jurors or focus group members
or the like, or to furnish technical or expert services, and/or to
give testimony in this action;
as defined in paragraph 4(f) of the Amended Protective Order. See Filing No. 145 Amended Protective Order p. 2 (emphasis added). “Since Woodmen has not retained any
of the other Short Term Bond Fund participants, the language U.S. Bank references in the
Amended Protective Order does not apply to the contact person of the other Short Term
Bond Participants and Woodmen’s disclosure is sufficient.” See Filing No. 165 - Brief p.
4. “Moreover, requiring Woodmen to provide additional identifying information for this
group would be nonsensical given the fact that the names of contact persons for each
Fund are already known to U.S. Bank.” See Filing No. 165 - Brief p. 4. U.S. Bank
contends Woodmen should be ordered “to provide the name and address, if known, or, if
not, then the employer of, position, and title of the person to whom information will be
disclosed.” See Filing No. 162 - Brief p. 2. U.S. Bank also argues Woodmen is required
to give “a description of the persons to whom Woodmen actually intends to display
confidential documents” rather than a “blanket” notice describing “a class of persons to
whom it may decide to display such documents.” See Filing No. 167 - Reply p. 3-4.
For the notice to have any meaning, it must provide to the party who’s confidential
documents are to be disclosed, information sufficient to permit an objection to be made.
U.S. Bank included the “reasonable description” language in its proposed draft of the
original protective order. See Filing No. 106 - Index of Evidence, Ex. 2. The court does
not find the phrase, “reasonable description,” synonymous with “name and address” as

5

U.S. Bank now suggests. Had U.S. Bank wanted to require such notice to include the
name and address of the person to whom the confidential documents would be disclosed,
U.S. Bank certainly could have included language to that effect in its proposed order. To
require the notice to reflect the level of specificity currently argued for by U.S. Bank would
be to add additional terms to the Amended Protective Order not previously proposed or
requested by the parties without a proper motion to amend. The court will refrain from
doing so.
With respect to U.S. Bank’s contention that Woodmen’s “List of Short-Term Bond
Participants and people to whom Woodmen may disclose USB documents marked
‘Confidential’” (Filing No. 166-1 - Ex. C) provides insufficient notice under the Amended
Protective Order, the court finds U.S. Bank’s arguments unpersuasive. Woodmen’s
intentions to confer with representatives of other Short Term Bond Fund participants to
discuss the basis for Woodmen’s claims against U.S. Bank have been clear from early in
this litigation. See, e.g., Filing No. 79 - Transcript 27-29. Moreover, Woodmen’s motion
to amend the original protective order (Filing No. 100), announced Woodmen’s intentions
to disclose confidential discovery documents to those participants. Given U.S. Bank’s
familiarity with the identity of the board members, trustees, employees, or advisors of the
Short Term Bond Fund participants, Woodmen’s initial notice (Filing No. 163 - Ex. 1) is
arguably sufficient. In any event, the supplemental information provided by Woodmen
clearly furnished U.S. Bank with sufficient notice under the provisions of the Amended
Protective Order. The court recognizes that Woodmen’s supplemental information consists
of a list of all of the Short Term Bond Fund participants and the individuals listed as the
contact person for each participant. The court also recognizes Woodmen’s litigation
strategy may involve disclosure of confidential documents to only a portion of that list.
Nevertheless, the court will not impose on Woodmen a duty to disclose its litigation
strategy in order to meet the specificity of notice demanded by U.S. Bank.

B. Identity of Information
In response to the parties’ arguments at the August 24, 2010, hearing on the
plaintiff’s motion to compel (Filing No. 62), the court ordered the parties to “submit to the
6

court a draft protective order to address documents sought with respect to other
participants in the short-term bond fund, agreed to by the parties, or if no agreement is
reached, separate draft orders, from which the court will select.” See Filing No. 88 - Order
¶ 4. The separate draft orders submitted by the parties, covered a much broader range
of discovery than outlined in the court’s order. See Filing No. 106 - Index of Evidence, Exs.
2-4.

After considering both drafts, the court adopted U.S. Bank’s draft with minor

alterations. See Filing No. 89 - Protective Order. Then on April 26, 2011, in response to
Woodmen’s motion to amend the protective order (Filing No. 100), the court entered an
Amended Protective Order expanding the categories of individuals to which Confidential
documents could be disclosed in accordance with the provisions of the order. See Filing
No. 145 - Amended Protective Order. Neither the Protective Order, nor the Amended
Protective Order require the parties to identify or provide a reasonable description of the
confidential documents or information they seek to disclose. See Filing No. 89 - Protective
Order; Filing No. 145 - Amended Protective Order. Moreover, the court notes the proposed
orders submitted to the court from the parties did not contain any such provision. See
Filing No. 106 - Index of Evidence, Exs. 2-4.
U.S. Bank argues the large volume of confidential documents produced in discovery
makes it impossible to know which information Woodmen intends to disclose, therefore
leaving U.S. Bank unable to determine whether the intended disclosure is objectionable.
The court recognizes the large volume of documents produced by U.S. Bank in this
litigation complicates the process, but the court is also cognizant that by designating nearly
all of its produced documents “Confidential,” U.S. Bank is largely responsible for creating
or compounding its current predicament. As Woodmen correctly notes, had U.S. Bank
been more selective in its designations, it would have known what documents were at
issue. See Filing No. 174 - Reply p. 11.
The Amended Protective Order does not require the parties to identify the particular
confidential documents they intend to disclose to third parties. Contrary to its argument,
U.S. Bank is not entitled to “at least a substantive description of the information to be
disclosed. . . .” See Filing No. 162 - Brief p. 2. To find otherwise would require the court
to add terms, not previously proposed or requested by the parties, to the Amended
7

Protective Order creating further barriers to the parties’ discovery efforts. The court will
refrain from doing so.

The court finds Woodmen’s notice of its intent to disclose

confidential information sufficient under the Amended Protective Order.

C. Rule 37 Sanctions
Woodmen asks the court to impose Rule 37 sanctions against U.S. Bank and
award Woodmen attorney’s fees associated with opposing U.S. Bank’s motion (Filing No.
161) and with bringing its own motion (Filing No. 164). See Filing No. 164 - Motion p. 2.
Woodmen contends U.S. Bank, by filing its preemptive motion, failed to follow the
provisions of the Amended Protective Order. Moreover, Woodmen argues U.S. Bank’s
objections are baseless, merely causing additional delay in discovery and additional
expense to Woodmen.
While U.S. Bank’s motion seems to be preemptive, the court notes U.S. Bank’s
objections appear to be directed at the form of Woodmen’s notice rather than the intended
disclosure itself. U.S. Bank argues Woodmen’s notice provides insufficient information to
allow U.S. Bank to make objections.

The court finds U.S. Bank’s objections are

substantially justified, even though they are rejected by this court. As discussed above,
the language of paragraph 6 of the Amended Protective Order is somewhat ambiguous
with respect to the notice requirement and the phrase “reasonable description” is arguably
subject to different interpretations. Under the circumstances, the court does not find the
imposition of sanctions warranted in this case and will not assess sanctions against U.S.
Bank with regard to the instant discovery dispute. Upon consideration,

IT IS ORDERED:
1.

U.S. Bank’s Motion To Prevent Disclosure Of Confidential Information

Without Further Clarification And Information Sufficient To Allow Objection To Be Made
(Filing No. 161) is denied.
2.

Woodmen’s Motion To Disclose Confidential Information To Other Short

Term Bond Fund Participants And For Rule 37 Sanctions (Filing No. 164) is granted in part

8

and denied in part. The court finds Woodmen’s notice compliant with the Amended
Protective Order. Woodmen’s request for Rule 37 sanctions is denied.

DATED this 25th day of July, 2011.
BY THE COURT:

s/Thomas D. Thalken
United States Magistrate Judge

*This opinion m ay contain hyperlinks to other docum ents or W eb sites. The U.S. District Court for
the District of Nebraska does not endorse, recom m end, approve, or guarantee any third parties or the services
or products they provide on their W eb sites. Likewise, the court has no agreem ents with any of these third
parties or their W eb sites. The court accepts no responsibility for the availability or functionality of any
hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to som e other site does not affect
the opinion of the court.
9