West v. Bell Helicopter Textron, Inc. et al

Filing 136

ORDER denying 133 Motion for Protective Order. So Ordered by Chief Judge Joseph N. Laplante.(jb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Kurt West
v.

Civil No. 10-cv-214-JL

Bell Helicopter
Textron, Inc. et al.
SUMMARY ORDER
This is a products liability case arising out of a
helicopter accident.

The pilot, Kurt West--who survived the

crash but was injured--has sued the manufacturer of the
helicopter, Bell Helicopter Textron, Inc., the manufacturer of
its engine, Rolls Royce Corporation, and the manufacturer of
certain other components, Goodrich Pump & Engine Control Systems,
Inc.

This court has jurisdiction over this action between West,

a Massachusetts citizen, and the defendants, foreign
corporations, under 28 U.S.C. § 1332(a)(1) (diversity).
During the late spring and early summer of 2012, the parties
submitted six different motions seeking to resolve discovery
disputes that had arisen.

After some prodding from the court,

however, see Order of July 20, 2012, Order of January 4, 2013,
counsel informed the Deputy Clerk that the parties had resolved a
number of the issues presented by the motions.

The court

proceeded to deny the motions as moot, see Order of Feb. 1, 2013,
subject to the defendants’ right to file a renewed motion for a

protective order ruling that they had properly designated certain
documents they produced in this litigation as “confidential.”
(That is, there is no dispute over whether the documents should
be produced--they already have been--only over whether the
plaintiff can share them with third parties beyond his attorneys
and experts in this litigation.)

One of the defendants,

Goodrich, subsequently notified the court that it did not wish to
renew its motion for a protective order.

Another defendant,

Rolls-Royce, renewed its motion for a protective order as to
certain documents; the plaintiff renewed its objection; and
Rolls-Royce renewed its reply.

After reviewing those

submissions, the court denies Rolls-Royce’s motion for a
protective order.
Early in the case, the parties agreed on a protective order
to govern discovery.

Order of May 19, 2011 (“Protective Order”).

Under the Protective Order, a party may designate information
produced in discovery as “Confidential,” with the result that it
“shall not be disclosed to any person or entity” except, in
general, to the parties, their attorneys, and others involved in
this litigation, to be “used solely for the purposes of this
litigation.”

The Protective Order, however, does not allow the

designation of discovery materials as “Confidential” unless they
“constitute (a) trade secrets, (b) other proprietary information
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(including research, development, or commercial information), or
(c) medical, financial, or other private information that would
create a risk of embarrassment to the plaintiff if disclosed.”
The Protective Order sets forth a procedure for one party to
dispute another party’s confidentiality designations as to
documents it produced by filing a “Notice of Disagreement.”
After that happens, the producing party must, among other things,
“file a motion . . . seeking to sustain its burden of proof that
the documents are, in fact, entitled to confidentiality under the
provisions of this Order, [or] New Hampshire or other applicable
law.”

To that end, Rolls Royce has filed a motion attempting to

make that showing as to documents identified in the plaintiffs’
notice of disagreement.

Surprisingly, however, Rolls Royce has

not submitted any of those documents to the court, nor provided
more than a conclusory description of any of them.

While Rolls

Royce, in its motion, offers to produce the documents for in
camera inspection at the request of the court, it is up to the
defendants, not the court, to decide what materials to submit in
order to show their entitlement to discovery relief.

See

Rockwood v. SKF USA, Inc., 2010 DNH 171, 19 n.10.
Rolls Royce describes the information in its allegedly
confidential documents only through a series of generalizations:

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trade secrets, confidential investigation files, plans
and recommendations for product improvements, technical
and proprietary information related to the calculation
of certain failure probabilities, technical and
proprietary information related to the estimates and
assumptions used to formulate failure probabilities,
technical and proprietary discussions of the risks and
benefits of decisions related to products.
This description is accompanied by a series of footnotes
referencing each disputed document, but those are equally vague,
e.g., memoranda “regarding the accuracy of an assumed value used
in calculating the likelihood of certain events, and outlining a
potential means of determining the accuracy of the assumed
value,” or “outlining a particular hazard, potential solutions
and their risks and benefits, and the Rolls-Royce decision
process related to the issue.”

Given the opacity of these

descriptions, the court simply cannot tell whether the
information in these documents “constitute[s] trade secrets [or]
other proprietary information (including research, development,
or commercial information)” so that they can be properly
designated as “Confidential” under the Protective Order or, for
that matter, any other applicable law.1

1

In defining confidential information, the Protective Order
tracks Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure,
under which a “court may, for good cause, issue an order to
protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense,” including by “requiring
that a trade secret or other confidential research, development,
or commercial information not be revealed.” Importantly, Rule
4

It is conceivable that Rolls Royce’s methods of analyzing
failures in its own products could amount to proprietary
information in that those methods “help [it] to develop and
design new and improved products thus allowing [it] to obtain a
significant commercial advantage.”

Culinary Foods, Inc. v.

Raychem Corp., 151 F.R.D. 297, 303 (N.D. Ill. 1993).
Royce does not say that.

But Rolls

It is also conceivable that information

as to potential product improvements could be proprietary in
that, if disclosed, it would give competitors “free access to
information which [Rolls Royce] has spent a great deal of time
and money producing and protecting,” costing it the “competitive
advantage it has obtained from this information.”

Id. at 305.

But Rolls Royce does not say that either.
All Rolls Royce says is that it “makes efforts to protect
the confidentiality of its business structure, its internal
methods, its technology, its analysis and plans related to the
technology, and its trade secrets.”2

This seems to suggest that

26(c), like the Protective Order, puts the burden on the party
seeking protection to show cause for it. See Anderson v.
Cryovac, Inc., 805 F.2d 1, 7-8 (1st Cir. 1986).
2

Rolls Royce states that “[t]he format and title and contact
information contained in the memos provide valuable information
to potential competitors about the structure, hierarchy, and
relationships within and between these two companies.” The sole
memorandum submitted to the court, however, merely lists the
author, senders, and recipients, identifying them by first and
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every aspect of Rolls Royce’s business is confidential and
proprietary, which by its nature is simply implausible.

See

Beane v. Beane, 856 F. Supp. 2d 280, 304 (D.N.H. 2012) (rejecting
business owner’s claim “that all information in or about its
product is a trade secret”) (bracketing and quotation marks
omitted).

Moreover, Rolls Royce does not explain how disclosure

of the documents at issue would threaten the claimed
confidentiality of any of these subjects (the plaintiff, for his
part, dismisses that possibility, asserting that the disputed
documents “about component failure rates and proposed solutions”
concern a part that Rolls Royce began using in its helicopter
engines in 2010, so that its plans for introducing the part, and
its design, were publicly disclosed long ago).

In any event, the

court cannot meaningfully address such an argument without
looking at the documents themselves which, again, Rolls Royce has
not submitted.
Rolls Royce also argues that the documents “relate to
incidents, hazards, and probabilities of different hazards,”
which it “and its business partners, in order to adequately

initial and last name only, without identifying their titles,
departments, position within their company’s “hierarchy,” or
anything else about the “structure” of or “relationships” within
either company. It is exceedingly difficult to see how the last
names of a few of a company’s employees could amount to
proprietary information.
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ensure the safety of operators and the general public, need the
ability to address . . . with honesty and frankness.”

But Rolls

Royce does not explain how that purpose, however laudable,
transforms these communications into trade secrets or other
proprietary information so as to warrant confidentiality under
the Protective Order.
Instead, Rolls Royce suggests that this brings the documents
within the aegis of the “self-critical analysis” privilege.

As

Rolls Royce acknowledges, however, it sought to assert that
privilege in response to a motion to compel the plaintiff
previously filed in this case, but the court ruled that Rolls
Royce had waived it by failing to raise the privilege either in
Rolls Royce’s formal responses to the plaintiff’s first set of
document requests or in connection with a discovery conference
with the court “at which the defendants’ relevance objections to
the same requests were extensively discussed.”

West v. Bell

Helicopter Textron, Inc., 2011 DNH 217, 19-20.

Rolls Royce did

not appeal that order, but complied by producing the very
documents Rolls Royce had claimed were protected by the selfcritical analysis privilege.

So Rolls Royce cannot resurrect its

privilege claim now by claiming that the same concerns which (in
its view) support the privilege amount to good cause for the

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issuance of a protective order.3

In any event, that a “company

fears public embarrassment,” or even “groundless litigation,”
from the disclosure of its own reports of problems with its
products is not good cause for the issuance of a protective
order.

See Nicklasch v. JLG Indus. Inc., 193 F.R.D. 570, 574

(S.D. Ind. 1999).
The court of appeals has made clear that, rather than
relying on “conclusory statements,” a party seeking a protective
order must “make a specific demonstration of necessity for” it.
Anderson, 805 F.2d at 7.
burden.

Rolls Royce has not carried that

Accordingly, its motion for a protective order upholding

its confidentiality designations as to the documents identified
by Bates number therein (document no. 133) is DENIED.
SO ORDERED.

____________________________
Joseph N. Laplante
United States District Judge
Dated:
cc:

February 27, 2013

Joan A. Lukey, Esq.
Sara Gutierrez Dunn, Esq.

3

Indeed, Rolls Royce does not say that the court was wrong
to find a waiver of the self-critical analysis privilege, nor
does it provide any authority or developed argument for
recognition of such a privilege under New Hampshire law.
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John P. O'Flanagan, Esq.
L. Robert Bourgeois, Esq.
Martha C. Gaythwaite, Esq.
Brian M. Quirk, Esq.
James C. Wheat, Esq.
Jason L. Vincent, Esq.
Pierre A. Chabot, Esq.
Phillip S. Bixby, Esq.
Marie J. Mueller, Esq.

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