Biazari v. Capital Safety, Inc. et al

Filing 34

MEMORANDUM OPINION & ORDER granting MOTION for Protective Order and Memorandum in Support 21 filed by DB Industries, LLC. Signed by Magistrate Judge Joel C. Hoppe on 4/26/17. (kld)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
Harrisonburg Division
POUNEH BIAZARI, Administrator of the )
Estate of Payman Biazarikari, Deceased,
)
Plaintiff,
)
)
v.
)
)
DB INDUSTRIES, LLC, d/b/a
)
Capital Safety USA,
)
Defendant.
)

Civil Action No. 5:16-cv-49
MEMORANDUM OPINION & ORDER
By:
Joel C. Hoppe
United States Magistrate Judge

This matter is before the Court on Defendant DB Industries, LLC’s Motion for Protective
Order, ECF No. 21 (“Def. Mot. & Br.”). The parties agree that entry of a protective order is
appropriate, and they also agree as to most of the terms for a protective order. See id. at 4–5.
They disagree, however, as to two key provisions: (1) whether the protective order should define
in advance the categories of information that may be designated as confidential or proprietary or
as a trade secret (and therefore protected from disclosure to unauthorized persons), and if such a
provision is included, the scope of information that would fall within that designation; and (2)
whether the protective order should allow Plaintiff to share such confidential information with
similarly situated plaintiffs in other pending civil actions. See id. at 4–6; see also Pl. Br. 3–4,
ECF No. 22.
I. Background
In this products liability action, Plaintiff Pouneh Biazari, in her capacity as Administrator
of the Estate of Payman Biazarikari (“Decedent”), contends that Defendant manufactured and
sold a defective fall prevention device, the LAD-SAF Cable Sleeve (“LAD-SAF sleeve”). Pl. Br.
1–2. Decedent was wearing the LAD-SAF sleeve while working on a cellular tower. Id. at 2.
Plaintiff alleges that although Decedent used the device in an appropriate manner, it failed to

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arrest his fall from the tower. Id. Decedent sustained severe injuries from the fall and
subsequently died. Id. Defendant has since recalled the “X1” model of the LAD-SAF sleeve (the
model Decedent was wearing at the time of his injury) from the market, although the newer “X2”
and “X3” models are still in use. Id.
In addition to this action, other suits have been filed in the federal courts against
Defendant and its parent, 3M Company, on behalf of individuals who were killed or injured after
the LAD-SAF sleeve allegedly failed to prevent their falls. See Flack v. DB Indus., No. 3:11-cv00088-JAJ-TJS (S.D. Iowa); 1 Braman v. DB Indus., Inc., No. 2:16-CV-13897-VAR-MKM (E.D.
Mich.); McDonald v. DB Indus., LLC, No. 4:16-cv-03037-BYP (N.D. Ohio); Isham v. 3M Co.,
No. 5:16-cv-0881-HE (W.D. Okla.); Scott v. 3M Co., No. 4:16-cv-02775 (S.D. Tex.)
(collectively, “collateral LAD-SAF cases”). 2 Plaintiff seeks to share confidential information
obtained during discovery in this matter with counsel for the plaintiffs in those cases so as to
reduce the costs of cumulative discovery and allow for her and the other plaintiffs to collaborate
with one another in formulating their litigation strategies.
II. Discussion
A court may issue an order to protect a party from “annoyance, embarrassment,
oppression, or undue burden or expense, including . . . (G) requiring that a trade secret or other
confidential research, development, or commercial information not be revealed or be revealed
only in a specified way.” Fed. R. Civ. P. 26(c)(1). The party seeking a protective order bears the
burden of showing good cause for it. In re Deutsche Bank Tr. Co. Ams., 605 F.3d 1373, 1378

1

This case was remanded to state court in 2012. See Order, Flack v. DB Indus., No. 3:11-cv-00088-JAJTJS (S.D. Iowa), ECF No. 59.

2

In her brief, Plaintiff also named Marc Morris and Liberty Mutual Insurance Co. v. DB Industries as a
collateral case. Pl. Br. 2. She did not include a docket number or court in which that case was pending,
and the Court has been unable to find a federal action under that name.

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(Fed. Cir. 2010). The proponent must show that the information is confidential and that its
disclosure would create a risk of harm to the party’s interests. In re Violation of Rule 28(D), 635
F.3d 1352, 1357–58 (Fed Cir. 2011). If a court finds that such a risk exists, it must balance the
risk against the potential harm to the opposing party’s case from the restrictions placed on the
information. Deutsche Bank, 605 F.3d at 1380; accord Pfizer Inc. v. Apotex Inc., 744 F. Supp. 2d
758, 762 (N.D. Ill. 2010).
A.

Definition and Scope of Confidential Information
Defendant identifies some broad categories of discoverable information that should be

protected from unauthorized disclosure, including information pertaining to the LAD-SAF
sleeve’s design, testing, and development, as well as Defendant’s investigations of any
complaints about the product. 3 It contends that within these broad categories it should retain
discretion to decide, on a case-by-case basis, which documents are to be considered confidential.
Def. Mot. & Br. 5–6, 12–13. If Plaintiff objects to such a designation, the parties would confer to
determine whether confidential treatment is merited and, if necessary, bring their dispute before
the Court for resolution. Id. at 12–13.
Plaintiff, for the most part, 4 agrees that information falling within these categories would
be proprietary and therefore protected from disclosure. Rather than leaving Defendant to make
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The Court does not have before it specific information about Defendant’s investigation of complaints
about its product; thus, I do not decide whether part or all of the investigative documents warrant
protection. In providing guidance to the parties as to the parameters of Rule 26(c)’s protections, the Court
notes that documents demonstrating a defendant’s knowledge that its product is dangerous are not
protected from public disclosure merely because they are embarrassing or damaging to the defendant.
Culinary Foods, Inc. v. Raychem Corp., 151 F.R.D. 297, 301 (N.D. Ill. 1993). A defendant’s investigation
of complaints, however, may also reveal the steps it took to address the dangerous condition or other
commercially sensitive strategies that likely would warrant protection. Id.

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Plaintiff suggests that documents pertaining to the X1 model may no longer be commercially sensitive
because that model has been taken off the market. See Pl. Br. 3, 5. Defendant has noted, however, that the
X2 and X3 models build off the design of the X1. Thus, even though the X1 is no longer marketed by
Defendant, proprietary information relating to that model could still cause commercial disadvantage in the

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confidentiality determinations on a document-by-document basis, however, Plaintiff seeks to
include language in the protective order that would limit confidential protection to the following
specific classes of documents:
a.
b.
c.

d.
e.

All design drawings and specification[s] pertinent to the design at issue
in this case.
All developmental, prototype, mechanical, and production (certification)
test reports, photographs and films pertinent to the LadSaf sleeve.
All internal minutes of meetings, memoranda of engineers and budgetary
information pertinent to the consideration of the components at issue in
this case, alternative designs considered but not chosen, and information
regarding the risks and benefits of the chosen and alternative designs.
Failure Mode and Effect Analysis for the design at issue in this case.
Communications received and sent regarding the claimed injuries or
deaths purportedly stemming from the performance of the LadSaf sleeve.

Def. Mot. & Br. 4 n.3; accord Pl. Br. 8–9. Plaintiff maintains that by setting out a more precise
definition of confidential information from the outset, the parties might proceed with discovery
more efficiently and reduce the likelihood of disputes that may need to be brought before the
Court. Pl. Br. 9. Defendant argues that this is unnecessary and would hinder its ability to make
good-faith confidentiality designations for documents falling outside this scope. Def. Mot. & Br.
12–13.
An umbrella protective order such as Plaintiff proposes “may be utilized when parties to
litigation anticipate discovery to be voluminous.” Norris v. Excel Indus., Inc., No. 5:14cv29,
2015 WL 4431022, at *2 (W.D. Va. July 20, 2015). Here, Defendant anticipates that the volume
of discovery will be relatively modest. Def. Mot. & Br. 12. Accordingly, in this case there are
fewer benefits of efficiency to be gained by designating categories of confidential documents at
the outset with the specificity suggested by Plaintiff than there would be in more complex
hands of a competitor and therefore should be presumed confidential. See Culinary Foods, 151 F.R.D. at
303. Defendant has the stronger argument. As discovery proceeds, Plaintiff may still challenge the
designation of particular documents pertaining to the X1 if she believes these are not trade secrets or that
public disclosure would not otherwise threaten Defendant’s competitive position.

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litigation. The parties thus far have demonstrated an ability to work with one another on
discovery matters, and there is no reason at this time to doubt that Defendant will make its
confidentiality designations in good faith. Furthermore, Plaintiff will still be able to challenge
Defendant’s designations and, if a more exacting definition of confidentiality proves necessary,
may move to modify the protective order to incorporate her proposed language.
Notwithstanding my finding that such a precise definition of confidential information is
unnecessary at this time, the protective order in this case must still make clear that documents
treated as confidential fall within the parameters set forth in Rule 26(c)(1)(G) protecting “trade
secret or other confidential research, development, or commercial information.” After all, a court
may issue a protective order only upon finding that good cause exists to limit dissemination of
commercially sensitive information provided in discovery. A protective order that fails to
acknowledge any parameters for what constitutes “confidential” information would violate Rule
26(c). See Norris, 2015 WL 4431022, at *4–5 (citing United States ex rel. Davis v. Prince, 753
F. Supp. 2d 561, 566 (E.D. Va. 2010)). Defendant’s proposed protective order does not satisfy
this standard even though its counsel’s representations about the nature of the documents show
that they are commercially sensitive and their dissemination would cause harm. Accordingly, any
documents designated confidential under the protective order must concern a “trade secret or
other confidential research, development, or commercial information.” Fed. R. Civ. P.
26(c)(1)(G).
B.

Sharing with Collateral Plaintiffs
Defendant also objects to the inclusion of a provision in the protective order allowing

Plaintiff to share confidential information with plaintiffs in the collateral LAD-SAF cases. Def.
Mot. & Br. 7–12. As Defendant notes, such “upfront sharing provisions,” in which collateral

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litigants are granted permission before commencement of discovery to access confidential
materials, are usually disfavored in the federal courts. Clippard ex rel. Clippard v. Yamaha
Motor Corp., No. 5:14-CV-83-R, 2015 WL 1208551, at *2 (W.D. Ky. Mar. 17, 2015) (citing
Long v. TRW Vehicle Safety Sys., Inc., No. CV-09-2209, 2010 WL 1740831, at *1 (D. Ariz. Apr.
29, 2010)); see also Harris v. Kellogg, Brown & Root Servs., Inc., No. 08-563, 2008 WL
5246017, at *3–6 (W.D. Pa. Dec. 15, 2008) (explaining reasons for denying plaintiff’s request
for a broad upfront sharing provision, including that it would cede control of defendant’s
proprietary information entirely to plaintiff); Massachusetts v. Mylan Labs., Inc., 246 F.R.D. 87,
90–91 (D. Mass. 2007) (rejecting provision that would allow sharing with other law enforcement
entities because “such broad disclosure would eviscerate the effectiveness of the protective
order”); Gil v. Ford Motor Co., No. 1:06cv122, 2007 WL 2580792, at *4–6 (N.D. W. Va. Sept.
4, 2007) (finding that caselaw did not support plaintiff’s assertion that upfront sharing provisions
were favored by a majority of courts); Culinary Foods, 151 F.R.D. at 306–07 (rejecting
plaintiff’s request to share confidential information with collateral litigants because doing so
“would unduly raise the risk that Raychem’s competitors will obtain access to this confidential
information”). But see Deford v. Schmid Prods. Co., 120 F.R.D. 648, 653–55 (D. Md. 1987)
(allowing sharing of confidential information with other products liability plaintiffs); Burlington
City Bd. of Educ. v. U.S. Mineral Prods. Co., 115 F.R.D. 188, 190–91 (M.D.N.C. 1987)
(endorsing collaboration and sharing of information among collateral litigants and noting that
“even confidential material should be shared when possible”).
On balance, the factors present in this case show that an upfront sharing provision would
not be appropriate at this time. The parties agree that Defendant has an interest in preventing the
disclosure of commercially sensitive material to the public and its competitors, and as a matter of

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simple probability the risk of such disclosure (whether intentional or inadvertent) increases as
more individuals gain access to this material. Likewise, the Court’s range of options to remedy
violations of the protective order is necessarily diminished when the violations are committed by
nonparties. See Williams v. Taser Int’l, Inc., No. 1:06-CV-0051, 2006 WL 1835437, at *2 (N.D.
Ga. June 30, 2006) (“[T]he Court recognizes that the more widely confidential documents are
disseminated, it becomes both more likely that those documents will be released, and more
difficult for the Court to enforce the terms of its protective order.”). Meanwhile, Plaintiff has not
shown how she would directly benefit from the inclusion of a sharing provision in the protective
order, as she would have access to confidential documents regardless of whether she can share
them with collateral litigants. See Steede v. Gen. Motors, LLC, No. 11-2351, 2012 WL 2089761,
at *4 (W.D. Tenn. June 8, 2012) (“For her part Plaintiff has not shown how entry of a ‘nonsharing’ protective order results in hardship for her case,” as this restriction did not “prejudice[]
her ability to obtain discovery in support of her own claims.”); Gil, 2007 WL 2580792, at *5
(noting that plaintiff “will not be precluded in any way from receiving discovery due to the nonsharing protective order”). 5
This is not to say that disclosure of confidential material to the plaintiffs in the collateral
LAD-SAF cases could never be justified. The Court is mindful that the purpose of limiting the

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Arguably, the calculus of interests derived from sharing confidential information might include more
indirect benefits to Plaintiff, such as being able to compare discovery responses with collateral litigants,
reduce the cost and burden of evaluating duplicative sets of documents, and collaborate with other
plaintiffs to create a common litigation strategy. See Dustin B. Benham, Proportionality, Pretrial
Confidentiality, and Discovery Sharing, 71 Wash. & Lee L. Rev. 2181, 2199 (2014) (describing the
benefits of discovery sharing among similarly situated litigants). Some courts have also looked beyond
the plaintiff’s own interests in disclosure and considered the needs of nonparties. See Ohio Valley Envtl.
Coal. v. Elk Run Coal Co., 291 F.R.D. 114, 118, 122–23 (S.D. W. Va. 2013) (balancing potential harm to
the defendant against the public’s interest in disclosure). As explained below, however, I find that these
factors would best be considered if presented to the Court by the collateral litigants themselves, as they
have the most direct and substantial interest in disclosure.

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dissemination of proprietary information is to protect the producing party from competitive
disadvantage in the marketplace, not to make litigation more burdensome for its adversaries. See
Metro Media Entm’t, LLC v. Steinruck, No. 12-0347, 2013 WL 1833266, at *8 (D. Md. Apr. 30,
2013) (noting that sharing discovery with collateral litigants is appropriate under the Federal
Rules, and therefore could not by itself provide a basis for the producing party to object to
disclosure); Ohio Valley Envtl. Coal., 291 F.R.D. at 121–22 (rejecting the defendant’s argument
that documents should be protected on the basis that they might be used against it in another
litigation); Culinary Foods, 151 F.R.D. at 306 (stating that the receiving party’s intent to share
the information with other litigants is not by itself good cause for a protective order except where
litigation is commenced solely to undermine discovery restrictions in other cases).
Circumstances may arise that justify sharing among plaintiffs. For example, during the
motion hearing, counsel for Plaintiff suggested that he and counsel for plaintiffs in the collateral
LAD-SAF cases may retain a common expert. It may therefore prove reasonable to allow
Plaintiff to share confidential documents with litigants in the collateral LAD-SAF cases if those
litigants also can show a need for access to the documents and the Court can be adequately
assured that the confidential information would be safeguarded from inappropriate disclosure.
Furthermore, Plaintiff has identified specific cases against Defendant that have already
commenced, and which are likely to invoke substantially similar issues as in this matter. This
alleviates some of the concerns that have led other courts to be skeptical of proposals to share
confidential material with nonparties. Cf. Harris, 2008 WL 5246017, at *3–4 (finding the
plaintiff’s proposed language to be overbroad, as it “would essentially permit the disclosure of
Defendant’s confidential information to any prospective litigant with any type of claim against
Defendant arising out of its activities in Iraq or Afghanistan”); Mylan Labs., 246 F.R.D. at 90–91

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(finding that proposal to share information with law enforcement to aid in potential
investigations, rather than actual pending litigation, was insufficient to establish good cause for
sharing provision); Gil, 2007 WL 2580792, at *6 (expressing concern that plaintiff sought
disclosure to unknown litigants); Guthrie v. Smith & Nephew, Inc., No. 2:05cv903, 2006 U.S.
Dist. LEXIS 88764, at *5 n.1 (S.D. W. Va. Dec. 7, 2006) (“It appears to the court, that Plaintiffs’
case is not one of many other similar lawsuits filed elsewhere, such that document sharing would
result in overall efficiency and judicial economy.”). At the moment, however, the information
before the Court is insufficient to evaluate whether sharing is necessary and adequate protections
are in place to guard against dissemination of confidential information.
For the foregoing reasons, I find that entry of an upfront sharing provision is not justified
in this case. A more appropriate procedure, instead, would be for the plaintiffs in the collateral
LAD-SAF cases to move to intervene and present their arguments for access to confidential
information directly to the Court. 6 Mylan Labs., 246 F.R.D. at 91–92 (citing, inter alia, 8 Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2044.1 (2d ed. 1994)). This
method has the advantage of allowing those litigants to demonstrate a specific need for particular
documents in an adversarial context, rather than having Plaintiff present abstract arguments on
their behalf. Id.; accord Clippard, 2015 WL 1208551, at *4 & n.5. It would also allow the Court
to ascertain whether sufficient protections against disclosure are in place in the collateral LADSAF cases, thereby offering both this Court and the court in which the collateral proceeding is
filed the full panoply of measures to address violations of any protective order. See Culinary
Foods, 151 F.R.D. at 302–03 (noting that a court may address a party’s discovery abuses arising
from violations of protective order from another case, but those violations of the protective order
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Of course, this would only become necessary if the parties cannot first reach agreement as to whether
sharing with a particular collateral plaintiff would be appropriate.

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would need to be enforced by the other court that issued it). Accordingly, the Court declines
Plaintiff’s request for an upfront sharing provision.
III. Conclusion & Order
In accordance with the foregoing memorandum opinion, I find that Defendant has shown
good cause for entry of a protective order. Defendant’s Motion for Protective Order, ECF No.
21, is therefore GRANTED. Consistent with this Memorandum Opinion and Order, only those
documents that constitute “trade secret or other confidential research, development, or
commercial information,” Fed. R. Civ. P. 26(c)(1)(G), may be identified as confidential. With
this caveat, the Court ORDERS that the Clerk FILE the protective order, ECF No. 21-1,
submitted by the Defendant.
It is so ORDERED.
The Clerk shall send a copy of this Memorandum Opinion and Order to the parties.

ENTER: April 26, 2017

Joel C. Hoppe
United States Magistrate Judge

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