Ortiz et al v. Cooper Tire & Rubber Company

Filing 93

ORDER denying 35 Motion to Permit the Use of Confidential Documents. Signed by Honorable Timothy D. DeGiusti on 8/13/2014. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MANUELLA ORTIZ, as surviving spouse
of JUAN GUTIERREZ PEREZ;
CARLOS MORALES; and
ROLANDO MORALES,

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Plaintiffs,
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vs.
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COOPER TIRE & RUBBER COMPANY, )
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Defendant.
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NO. CIV-13-32-D

ORDER
Before the Court is Plaintiffs’ Motion to Permit the Use of Confidential Documents
[Doc. No. 35]. Plaintiffs seek permission to use confidential documents in the depositions
of Defendant’s former employee, Dwayne Beach,1 and other former employees of Defendant
without a requirement that they sign a promise of confidentiality. In this regard, Plaintiffs
assert that paragraph 11 of the protective order entered in this case governs depositions and
does not require a deponent to sign a promise of confidentiality. Moreover, Plaintiffs
contend Defendant’s position that Mr. Beach must sign a promise of confidentiality is
unreasonable in light of his history, background and relationship to Defendant, including his
testimony in prior cases, both as an employee and as a litigation consultant, concerning the
confidential documents at issue.

1

The only witness listed by any party with a similar name is Brian E. “Dewey” Beach. Thus, the
Court assumes that Plaintiffs’ Motion contains a typographical error.

Defendant has filed an objection to Plaintiffs’ Motion asserting that it should be
denied on several bases. Defendant asserts that the Motion is premature because Mr. Beach
has not yet been subpoenaed to testify nor has he yet refused to sign the promise of
confidentiality required by paragraph 6 of the protective order; that Plaintiffs have not
certified that their counsel conferred about this matter with Defendant’s counsel as required
by LCvR37.1; that paragraph 11 of the protective order expressly grants Defendant the right
to require any deponent to sign the promise of confidentiality, including Mr. Beach; and that
Plaintiffs’ allegation that paragraph 6 of the protective order does not apply to Mr. Beach’s
deposition is unfounded.
Plaintiffs in reply state that this dispute was discussed with Defendant’s counsel over
the course of multiple telephone conferences and Defendant’s counsel ended discussions by
an email stating, “I just don’t have an answer for you since Beach is not my client. I would
say do what you need to do.” See Reply Br., Ex. 1 [Doc. No. 54-1]. Plaintiffs maintain that
this satisfied their LCvR37.1 obligation and they would not have brought this Motion
otherwise. The thrust of Plaintiffs’ reply is that because the parties ascribe different
interpretations to pertinent provisions of the protective order, there was no meeting of the
minds as to those provisions. Plaintiffs say they never would have agreed to an interpretation
of the protective order that would allow long-time Cooper employees and trial consultants
to simply say “no thanks” when subpoenaed to testify regarding documents they authored
or received during Defendant’s investigation into its tread separation problem.

2

First, the Court disagrees with Defendant that Plaintiffs’ Motion is premature. It is
not necessary for Plaintiffs to have subpoenaed Mr. Beach or identified which confidential
documents they intend to disclose to him, nor to know who will represent Mr. Beach at a
deposition. The dispute between Plaintiffs and Defendant, whose confidential documents
are at stake, is sufficiently developed and concrete to make disposition at this time
appropriate. Secondly, the Court finds from the information provided by Plaintiffs’ reply
brief that LCvR37.1 has been satisfied.
Paragraph 11 of the protective order entered in this case – the Order of Confidentiality
Relating to Cooper Tire & Rubber Company Confidential Documents [Doc. No. 28]
(hereafter, “Protective Order”) – specifically governs depositions. It provides, inter alia, that
“[i]f any confidential material is used or referred to during any deposition,” Defendant’s
counsel may require that only certain persons, including the deponent, may be present for the
portion of the deposition dealing with confidential material. See Protective Order at 7, ¶ 11.
It further provides, at footnote 7, that “[c]ounsel for [Defendant] may also serve a copy of
this Protective Order of Confidentiality upon the deponent, the court reporter, and camera
operator, and require that each sign the Promise of Confidentiality (Exhibit A) prior to further
questioning.” Id. Thus, Defendant is correct that it may require Mr. Beach to sign the
promise of confidentiality before he is questioned about confidential material in this case.
Paragraph 6 of the Protective Order expressly governs access to confidential material
and limits access to “authorized persons,” which is defined to include “[w]itnesses to be
deposed in this lawsuit (subject to the terms set forth in Section 11 (“Depositions) . . . ), that
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have read this Protective Order of Confidentiality and have executed a Promise of
Confidentiality in the form attached as Exhibit A.” Id. at 4, ¶ 6(f). Thus, there can be no
doubt that Defendant has a right under the Protective Order to require any deponent,
including Mr. Beach, to sign the promise of confidentiality before confidential material is
disclosed to him or her during a deposition.
Plaintiffs’ assertion that there was no meeting of the minds concerning the terms of
the Protective Order is without merit. The Protective Order is clear and unambiguous. All
parties jointly moved for entry of the Protective Order, and both Plaintiffs’ counsel and
Defendant’s counsel approved the form of the Order.
Finally, the facts that Mr. Beach has a past relationship with Defendant as an
employee and a consultant and that he signed a confidentiality agreement with Defendant in
November of 2007 (see Def.’s Resp. Br., Ex. B) are irrelevant. The Protective Order is what
governs the disclosure of confidential material to deponents and the questioning of deponents
about such material in this litigation. Of course, as an order of the Court, the Protective
Order may be modified under appropriate circumstances. Should Plaintiffs need deposition
testimony that is unavailable because Defendant insists on a promise of confidentiality and
a witness refuses to sign, then Plaintiffs may seek relief from the Protective Order in this
Court, or may seek an appropriate order from the court where the deposition is taken.2

2

Under the existing Scheduling Order, Plaintiffs would also need to seek relief from the deadline
to complete discovery, which was July 7, 2014.

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In accordance with the foregoing, Plaintiffs’ Motion to Permit the Use of Confidential
Documents [Doc. No. 35] is DENIED.
IT IS SO ORDERED this 13th day of August, 2014.

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