Fair v. Royal & Sun Alliance et al

Filing 128

ORDER granting in part and denying in part plaintiff's 112 Motion to Unseal Document. Signed by US Magistrate Judge Veronica L. Duffy on 07/10/12. (Duffy, Veronica)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
ANNA FAIR,
Plaintiffs,
vs.
NASH FINCH COMPANY, and
SEDGWICK CMS,
Defendants.

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CIV. 11-5005-JLV

ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
MOTION FOR RULING AS TO
CONFIDENTIALITY
[DOCKET NO. 112 ]

This matter is before the court on plaintiff Anna Fair’s complaint alleging
bad faith denial of her worker’s compensation insurance claim. See Docket
No. 34. Ms. Fair and defendants stipulated to the entry of a protective order in
this case. See Docket No. 56. Under the terms of that agreed-upon order,
defendants may mark documents they produce in discovery to Ms. Fair
“confidential” if they believe such documents are entitled to protected status.
Id. at ¶ 1. If a document is so marked, Ms. Fair may use the documents in this
case, and may disclose them to her consultants and experts, but she may not
disclose the documents further and any consultants and experts have to agree
to abide by the terms of the protective order. Id. at ¶¶ 2-3.
If Ms. Fair disagrees that a particular document is entitled to protected
status under the law, she may challenge defendants’ “confidential” designation
and ask the court to determine whether the document is entitled to protection.

Id. at ¶ 5. If Ms. Fair challenges a “confidential” designation, defendants bear
the burden of demonstrating entitlement to a protective order as to that
document. Id. If documents marked “confidential” are used in support of
pleadings filed with the court, they are filed under seal. Id. at ¶ 6.
Several such documents have been marked “confidential” and produced
by defendants in discovery. Ms. Fair obtained two documents through
discovery that she asserts should not be included under the protective order.
These documents are Sedgwick CMS Rule 30(b) (6) Deposition Exhibits 3 and
4.1 See Docket No. 112-1 and 112-2. Since filing the original motion, Ms. Fair
has acknowledged that Exhibit 4 (Docket No. 112-2) should remain confidential
and withdrew her motion as regards Exhibit 4. See Docket No. 124.
Therefore, now pending before the court, and pursuant to ¶ 5 of the
protective order, Ms. Fair has moved for an order seeking the court’s
determination that Sedgwick CMS Rule 30(b)(6) Deposition Exhibit 3 is not
entitled to protected status. She seeks the court’s order unsealing this
Exhibit.
Federal Rule of Civil Procedure 26(c)(1)(G) authorizes a court, for good
cause, to “issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense,” by “requiring that a

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Ms. Fair’s initial motion incorrectly captioned the exhibits as Nash
Finch Rule 30(b)(6) Deposition Exhibits.
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trade secret or other confidential research, development, or commercial
information not be revealed or be revealed only in a specified way.” The party
seeking a protective order has the burden of demonstrating that good cause
exists for issuance of the order. Saint Louis Univ. v. Meyer, 2008 WL 1732926,
* 1 (E.D. Mo. 2008). “Broad allegations of harm do not satisfy the good cause
requirement.” Id. “Rather, ‘the moving party must demonstrate that
disclosure will work a clearly defined and very serious injury.’ ” Id. (quoting
Uniroyal Che. Co. v. Syngenta Crop. Prot., 224 F.R.D. 53, 56 (D. Conn. 2004)
(quoting Cuno, Inc. v. Pall Corp., 117 F.R.D. 506, 508 (E.D.N.Y. 1987))).
Exhibit 3 is a report showing the volume of claims paid by Sedgwick’s
Minneapolis, Minnesota office in 2002. Defendants assert that Exhibit 3
contains “very specific financial data that was created for this lawsuit and
would not ordinarily be available to the general public.” See Docket No. 122 at
5. Additionally, defendants assert that preventing Ms. Fair from disseminating
the information or retaining it after the lawsuit causes no harm to her. Id.
Defendants offer no other support to show that Exhibit 3 is entitled to
protective status.
Defendants do not assert that Exhibit 3 is a trade secret. A trade secret
is defined as
information, including a formula, pattern, compilation, program, device,
method, technique, or process, that: (i) derives independent economic
value, actual or potential, from not being generally known to, and not
being readily ascertainable by proper means by, other persons who can
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obtain economic value from its disclosure or use; and (ii) is the subject of
efforts that are reasonable under the circumstances to maintain its
secrecy.”
S.D.C.L. § 37-29-1. Defendants make no attempt to argue that Exhibit 3 falls
within this definition. Furthermore, the report showing the volume of claims
paid by a Sedgwick office in 2002 does not derive some independent economic
value. In addition, defendants do not assert that the information contained in
Exhibit 3 contains confidential research, development, or commercial
information. Rather, defendants only assert that the financial information
contained in Exhibit 3 is not ordinarily available to the general public. The
defendants have not carried their burden of proof in establishing that Exhibit 3
is entitled to protective status. Therefore, it is hereby
ORDERED that Ms. Fair’s request for a ruling that Sedgwick CMS Rule
30(b)(6) Deposition Exhibits 3 and 4 is granted in part and denied in part.
Ms. Fair’s request to unseal Exhibit 4 (Docket No. 112-2) is denied as moot as
Ms. Fair is no longer seeking to unseal Exhibit 4. Ms. Fair’s request to unseal
Exhibit 3 (Docket No. 112-1) is granted. It is further

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ORDERED that the clerk’s office shall unseal the following document in
the court’s record found at the indicated docket number: Unseal Docket No.
112-1.
Dated July 10, 2012.
BY THE COURT:

/s/

Veronica L. Duffy

VERONICA L. DUFFY
UNITED STATES MAGISTRATE JUDGE

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