ACME TRUCK LINE, INC. v. GARDNER et al

Filing 51

ORDER GRANTING 50 MOTION to Supplement Motion to Compel John W. Robinson, John W. Robinson Law Offices and John W. Robinson, a Professional Corporations Production of Requested Documents (Related to Doc. Nos. 45, 46, 48, and 49) and Reply to M. David Frocks Response in, GRANTING 45 MOTION to Compel Acme Truck Line, Inc. and M. David Frocks Production of Requested Documents, DENYING 46 MOTION for protective order.(Signed by Judge Gray H. Miller) Parties notified.(rkonieczny, 4)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ACME TRUCK LINE , INC.,
Plaintiff,
v.
JEAN MAHONEY GARDNER, et al.,
Defendants.

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CIVIL ACTION H-13-3152

ORDER
Pending before the court is defendants’ motion to compel the production of requested
documents from Acme Truck Line, Inc. (“plaintiff”) and non-party, David Frock (“Frock”). Dkt.
45. Defendants have also moved to compel production of documents from non-parties, John W.
Robinson, John W. Robinson Law Offices, and John W. Robinson, P.C. (“Robinson”). Dkt. 50.
After considering the motions, response, reply, and applicable law, the court is of the opinion that
the motions should be GRANTED. Acme, Frock, and Robinson are ordered to produce to
defendants the documents being withheld by Monday, December 1, 2014 at 9:00 a.m.
This legal malpractice action arises from a state court lawsuit (“State Lawsuit”) filed against
plaintiff for damages resulting from the loss of a shipment of cell phones. Dkt. 23. Plaintiff filed
a claim with its insurer, Navigators Insurance Company (“Navigators”), seeking defense and
indemnity for the loss under its Motor Truck Cargo insurance policy. Id. at 3. Navigators engaged
Jean Mahoney Gardner (“Gardner”) and her law firm to represent Navigators’ interest in the State
Lawsuit. Id. Some time thereafter, David Frock was appointed by Navigators to act as plaintiff’s
counsel. Id. at 4. Robinson also acted as counsel for plaintiff in the State Lawsuit. Dkt. 50, p. 2 n.1.
After reaching a settlement with Verizon in the State Lawsuit, plaintiff filed this lawsuit, alleging

that Gardner breached her fiduciary duty and provided negligent legal representation because she
accepted a position at the law firm representing Verizon during settlement negotiations. Dkt. 23.
The parties dispute whether Gardner entered into an attorney-client relationship with plaintiff.
In this lawsuit, defendants propounded requests for production on plaintiff and subpoenaed
documents from non-parties, Frock and Robinson, related to Gardner’s actions in the underlying
State Lawsuit. Plaintiff, Robinson, and Frock have withheld certain documents that may be
privileged in the State Lawsuit, claiming that the documents should only be produced in this lawsuit
subject to a protective order. Specifically, plaintiff requests a protective order1 restricting certain
documents from being disclosed outside of this litigation. Because the underlying State Lawsuit is
still pending, plaintiff has concerns that documents produced in this litigation will be discovered by
adverse parties in the State Lawsuit. Defendants object to plaintiff’s position that they should be
required to enter into a protective order to obtain discoverable documents that are not otherwise
confidential or privileged in this action.
Federal Rule of Civil Procedure 26(b) allows a party to obtain discovery “regarding any
nonprivileged matter that is relevant to any party’s claim or defense.” FED . R. CIV . P. 26(b)(1). The
information sought need not be admissible at trial “if the discovery appears reasonably calculated
to lead to the discovery of admissible evidence.” Id. A party may move to compel production of
materials that are within the scope of discovery and have been requested but not received. FED . R.
CIV . P. 37(a). The party resisting discovery must show specifically how each request is not relevant

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Frock joined in plaintiff’s motion for a protective order. Dkt. 48. Robinson has not sought similar
relief from the court.

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or otherwise objectionable. McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482,
1485 (5th Cir. 1990).
The party resisting discovery may also move for a protective order. FED . R. CIV . P. 26(c)(1).
Rule 26(c) allows the court to issue a protective order upon a showing of “good cause” in order “to
protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense,
including . . . a trade secret or other confidential research, development, or commercial information.”
Id. at 26(c)(1)(G). A party seeking to protect the disclosure of sensitive information must first
establish the confidential nature of the requested discovery. See Freeport McMoran Sulpher, L.L.C.
v. Mike Mullen Energy Equip. Res., Inc., 2004 WL 595236, at *10 (E.D. La. Mar. 23, 2004). The
movant must also establish “good cause,” showing the necessity for the issuance of a protective
order. ST Sales Tech Holdings, L.L.C. v. Daimler Chrysler Co., L.L.C., 2008 WL 5634214, at *2
(E.D. Tex. Mar. 14, 2008); see also 8 WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE § 2043
(1970) (“Besides showing that the information qualifies for protection, the moving party must also
show good cause for restricting dissemination on the ground that it would be harmed by its
disclosure.”). For good cause to exist, the party seeking to limit the disclosure must make more than
conclusory allegations that specific prejudice or harm will result if no protective order is granted.
Smith v. Jaramillo, 394 F. App’x 183, 186 (5th Cir. 2010).
In determining whether to issue a protective order, the interests of those persons who wish
to obtain the disputed information should be balanced against the interests of those parties who wish
to keep the disputed information confidential. SEC v. Van Waeyenberghe, 990 F.2d 845, 848 (5th
Cir. 1993). Here, plaintiff’s speculative concerns regarding potential disclosure in the State Lawsuit
do not outweigh its discovery obligations in this case. Plaintiff acknowledges that privilege does not
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apply to the documents withheld in the context of this malpractice suit. Plaintiff generally refers to
the documents as “confidential,” but has failed to identify any valid basis upon which the court can
deem these documents confidential. Thus, the documents being withheld are discoverable by
defendants and have been properly requested in discovery.
Plaintiff insists, however, that the documents remain subject to protection because the
privileged nature of these documents is not waived as to non-parties in the State Lawsuit. Dkt. 46,
p. 6. To the extent the documents maintain their privileged status in the State Lawsuit, the
appropriate recourse, should disclosure occur, is to seek protection from the state court. Further, like
all attorneys, Gardner is subject to the rules of professional responsibility governing the disclosure
of privileged information. Finally, plaintiff is further protected by the Federal Rules of Evidence,
which dictate that disclosure of documents in a federal proceeding will not waive any claims of
privilege in a state court proceeding. FED . R. EVID . 502.
Defendants are entitled to the documents being withheld in order to defend against the claims
in this action, despite plaintiff’s hypothetical concerns. Absent a showing that the discovering party
is exploiting the instant litigation solely to assist litigation in a foreign forum, federal courts allow
full use of the information in other forums. Patterson v. Ford Motor Co., 85 F.R.D. 152, 153-54
(W.D. Tex. 1980); Johnson Foils Inc. v. Huyck Corp., 61 F.R.D. 405, 410 (N.D.N.Y. 1973). There
is no allegation of such impermissible intentions. In light of the inherent procedural safeguards
available to plaintiff, there is no good cause for the court to protect the information sought in this
case. As such, plaintiff has not met its burden for a protective order because it has not established
the confidential nature of the documents or the specific harm that will result should the documents
be produced.
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Under Rule 37, a party whose conduct necessitated the motion to enforce discovery generally
is required to pay the movant’s reasonable expenses and attorneys’ fees. FED . R. CIV . P. 37(a)(5)(A).
However, payment should not be ordered if the opposing party’s nondisclosure or objection was
“substantially justified.” Id. at 37(a)(5)(A)(ii). The court denies defendants’ request for expenses
and attorneys’ fees incurred in the preparation of their motions to compel. While the court ultimately
agrees that a protective order is not warranted, plaintiff had legitimate concerns regarding the
disclosure of documents in the ongoing State Lawsuit. While this is not the proper forum to lodge
privilege concerns, plaintiff had substantial justification for its position and continuously worked
with defendants and the court in an effort to resolve this discovery dispute. Therefore, the court
declines to award expenses and attorneys’ fees.
For the reasons stated herein, defendants’ motions to compel (Dkts. 45, 50) are GRANTED
and plaintiff’s motion for a protective order (Dkt. 46) is DENIED. Defendants have agreed to enter
into a confidentiality agreement with respect to specific documents that were not previously
disseminated to Gardner or Navigators in the State Lawsuit. Dkt. 45, p. 4. Thus, the parties are
ORDERED to confer and attempt to enter into a reasonable confidentiality agreement with respect
to the documents which were not previously sent to Gardner or Navigators. All other documents
requested by defendants, which are being withheld by Acme, Frock, and Robinson shall be produced
to defendants by Monday, December 1, 2014 at 9:00 a.m.
Signed at Houston, Texas on November 25, 2014.

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Gray H. Miller
United States District Judge
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