Ribble et al v. Kimberly-Clark Corporation et al

Filing 222

ORDER granting in part and denying in part 211 Motion to Compel. Schmidts motion to vacate the protective order is denied. His motion to compel his former attorneys to produce a copy of the complete file in his case is granted, subject to limitat ions. Schmidt's request that all court filings that were made under seal be unsealed will be granted unless within 45 days of this order any party seeking to retain such filing under seal shows good cause why Schmidt and members of the public should be denied access to it. (cc: all counsel and via US Mail to Richard Schmidt) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RICHARD S. SCHMIDT, et al.,
Plaintiffs,
v.

Case No. 09-C-0643

KIMBERLY-CLARK CORPORATION, et al.,
Defendants.

DECISION AND ORDER GRANTING IN PART AND DENYING PART
PLAINTIFF RICHARD SCHMIDT’S MOTION TO COMPEL PRODUCTION
OF LITIGATION FILE AND TO VACATE PROTECTIVE ORDER

On July 1, 2009, Plaintiff Richard S. Schmidt and 56 other individuals filed this age
discrimination action. Plaintiffs were former Kimberly-Clark Corporation employees who were
fired or forced to resign over a three-year period as part of a series of reductions in force. Schmidt
executed a retainer agreement with the attorneys representing the other 56 plaintiffs on June 24,
2009 and an amended retainer agreement on May 20, 2012. On August 20, 2012, plaintiffs’
attorneys filed a motion to withdraw as counsel for Schmidt. The motion was granted, and Schmidt
has proceeded pro se since then. The other 56 plaintiffs’ claims have since been dismissed, and
only Schmidt’s claims remain. Schmidt has filed a motion to compel his former attorneys to
provide him a “complete copy” of the litigation file related to this matter. He also seeks rescission
of the court’s February 17, 2010 protective order. The court held a hearing on the motion on
January 18, 2013, and ordered additional briefing. The matter is now ripe for decision. For the
reasons that follow, Schmidt’s motion will be granted in part and denied in part.

By way of brief background, early in the proceedings, the parties stipulated that discovery
would be conducted in phases. At issue during Phase I was the validity of a release and waiver
signed by all plaintiffs except Schmidt at the time of their termination. Discovery related to
individual termination decisions was to commence during Phase II. Because Schmidt did not sign
a release and waiver, the discovery process in Phase I was not directed to his claims. Schmidt’s
former attorneys state that during Phase I, they amassed more than 50,000 pages of documents from
defendants, and similarly compiled thousands of pages of documents on their own. A large amount
of these documents apparently involve confidential financial and health-related information
concerning each of the plaintiffs.
Schmidt’s former attorneys and K-C have argued that Schmidt’s motion should be denied
because the voluminous discovery generated during Phase I only dealt with the issue of whether the
release and waiver agreements were valid and enforceable. As such, they argue much of what
Schmidt seeks from the case file does not relate to his claims. Rather, they contend Schmidt will
be able to serve his own discovery requests and develop a case file related to his claims as the case
proceeds. K-C also assert that rescinding the protective order would be unnecessary and prejudicial
because thousands of business records were disclosed in reliance on the order, some of which were
marked “confidential,” some that were marked as containing “private personnel information,” and
some that were for “attorneys’ eyes only.”
To date, Schmidt’s former attorneys have produced to him all of the documents Schmidt
organized and forwarded to counsel related to the case, redacted versions of all the briefs filed in
this litigation, and the damage analysis prepared for Schmidt by plaintiffs’ retained expert. The
question presented is whether there are additional materials in his former attorneys’ files that should
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be turned over to him. Schmidt seeks copies of his attorneys’ entire case file. His former attorneys
contend that “[b]oth plaintiffs and K-C produced, at various times, a large amount of documents that
involve confidential financial and health-related documents.” (Dkt. # 217 at 2.) They argue that
an order requiring that they turn over the entire file would require them to sort through tens of
thousands of pages of documents to make sure that what they handed over did not contain personal
and private information obtained from one of their other fifty-six clients or material received from
K-C and designated “confidential” or “attorney’s eyes only” pursuant to the protective order. The
time and cost of such a review, the attorneys contend, would be prohibitive and disproportionate
to the minuscule potential benefit such material would have for Schmidt’s case. Instead, the former
attorneys suggest that Schmidt could be provided access to the entire sealed record in the case,
which would include all attachments accompanying the briefs filed with the court, subject to
Schmidt’s agreeing to be bound by the protective order stipulated to by the parties. K-C, on the
other hand, contends that Schmidt’s motion should simply be denied because he has already
received from his attorneys everything he is entitled to receive. Ultimately, the issue is not whether
Schmidt has the right to receive his attorneys’ litigation file, but rather what the “litigation file”
includes.
Courts differ on what documents relating to the representation an attorney must provide his
client for inspection or copying upon termination of the representation. The cases distinguish
between the “entire file” or the “end products.” See Loeffler v. Lanser (In re ANR Advance Transp.
Co., Inc.), 302 B.R. 607, 614 (E.D. Wis. 2003); S.E.C. v. McNaul, 277 F.R.D. 439, 444 (D. Kan.
2011); Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn L.L.P., 91 N.Y.2d 30, 34, 666
N.Y.S. 2d 985, 689 N.E.2d 879 (1997). A minority of courts employ the “end product” approach,
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which provides that a client is entitled to filed pleadings; final versions of documents prepared for
the client’s use; and attorney correspondence with the client, opposing counsel, and witnesses. In
re ANR Advance, 302 B.R. at 614. Under the minority rule, absent a demonstrated need, the client
is not entitled to preliminary documents used by the lawyer to reach the end product, such as
internal legal memoranda, preliminary drafts of pleadings, or other preliminary documents. Id. It
is unclear from the cases cited whether the minority rule includes discovery materials, such as
depositions, answers to interrogatories, or documents produced by the defendants in response to
requests or subpoenas issued by counsel. In any event, Wisconsin courts follow this minority rule.
Id. at 614, n.1 (citing Wis. Ethics Op. E-82-7 (1998)). This case arises under federal law, however,
and thus federal law would control.
Under the majority rule, upon termination of the attorney-client relationship, the client is
presumed to be entitled to full access to the attorney’s file on a matter where the attorney
represented the client. Id. This rule has also been adopted by the Restatement (Third) of Law
Governing Lawyers § 46(2) (2000). But the rule is subject to limitations. Attorneys may withhold
some non-end product documents including private notes and internal memoranda discussing
matters such as assignment of lawyers, whether the lawyer must withdraw, or possible malpractice
liability. See Restatement (Third) of Law Governing Lawyers § 46 cmt. c. In addition, “[a] lawyer
may deny a client’s request to retrieve, inspect, or copy documents when compliance would violate
the lawyer’s duty to another. . . . Justification would also exist if the document contained
confidences of another client that the lawyer was required to protect.” Id. Given these limitations,
the differences between the majority and minority rules may not be substantial. In re ANR Advance,
302 B.R. at 614.
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Although the Seventh Circuit does not appear to have addressed the issue, I conclude that
the rule stated in the Restatement with the exceptions noted is the better rule. Under that rule,
Schmidt is entitled to the full benefit of his attorneys’ efforts on his behalf over the past several
years. This rule makes sense in that it provides the client, not only the end products, but also the
discovery his attorneys have developed, as well as any pertinent factual or legal analysis. If Schmidt
had retained his former attorneys on an hourly basis, there would be little question that he would
have the right to the discovery and analysis he directly paid them to undertake. A contractor hired
to build a house does not take back the materials and labor he contributed to the project after he has
been paid for them if, because of a dispute with the owner, he does not complete the project. No
reason has been offered why the result should be different where, as here, the fee is contingent and,
instead of payment for time expended, the attorney agrees to accept as payment a percentage of the
recovery or a claim for fees from the defendant. The majority rule also makes sense because it
avoids the waste of resources that would result from requiring Schmidt or his future attorney to
expend time and effort accumulating the same evidence and analysis. This is especially the case
to the extent that the minority rule would not require attorneys to turn over to a client from whose
ongoing case they have withdrawn copies of depositions. Not only would it be unreasonable to
require the client to incur the expense of re-deposing a witness, but given the passage of time and
the fading of memories, the same evidence may not even be available.
While it is true that Schmidt’s claim was stayed during Phase I of the litigation, at least some
of the discovery conducted by the parties during Phase I is relevant to his claim. Plaintiffs’ overall
theory of the case was that each of them, including Schmidt, was terminated on account of his or
her age as part of K-C’s Global Business Plan to reduce its workforce. Phase I of the litigation was
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directed to the issue of whether the releases that all of the plaintiffs except Schmidt had signed as
part of a severance agreement were valid. Plaintiffs claimed that the waivers were invalid because
K-C had failed to provide the full disclosure required by The Older Workers’ Benefit Protection Act
(OWBPA), 29 U.S.C. § 626(f)(1). Phase I discovery focused on the statistical information that had
not been conveyed to those employees whose jobs were terminated but which plaintiffs’ attorneys
believed was necessary in order for their clients to intelligently assess the strength of potential age
discrimination claims before they signed releases. It is difficult to see how at least some of this
evidence might not be relevant to Schmidt’s claim even though he refused to sign a release.
This does not mean he is entitled to the entire file, however. He is not entitled to
confidential financial or health-related information the other fifty-six plaintiffs provided their
attorneys. Nor is he entitled to copies of documents his attorneys received on condition that they
would not disclose it to others. This would include documents designated “confidential” or
“confidential - attorneys’ eyes only” that his attorneys received from K-C pursuant to the protective
order. In that regard, to the extent Schmidt seeks to have the protective order rescinded, his motion
will be denied. Schmidt offers no reason that would justify rescinding an agreement which the
attorneys entered into in good faith in order to expedite discovery and upon which they relied
throughout the case. Assuming he agrees to be bound by the protective order, he may have access
to those materials designated “confidential,” and once he obtains counsel, his attorney, upon signing
the protective order, may have access to those marked “confidential - attorneys’ eyes only.”
I have considered the argument that the cost of the document review needed to determine
what must be retained or redacted is far in excess of whatever value the material will have to
Schmidt’s case. That will be for Schmidt to decide. Counsel should not be required to bear that
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expense. The Restatement makes clear that payment of expenses for delivering documents is the
responsibility of the client. Restatement (Third) of Law Governing Lawyers § 46 cmt. e. Where,
as here, there may be significant costs in reviewing and assembling the entire portion of the entire
file that Schmidt may receive, and the relevance of the entire file to his claim is somewhat
attenuated, placing the burden on the requester seems reasonable. If Schmidt agrees to be bound
by the protective order, however, providing what he has requested may not be as burdensome as
counsel initially estimated. It is not clear from the record what personal information the other
plaintiffs would have disclosed to their attorneys in a case of this kind. Further consultation
between Schmidt and counsel may be needed to establish precisely what is involved.
Schmidt does have other options, of course. Rather than becoming bogged down in what
would inevitably involve further disputes over which of the 50,000 plus documents are protected
because they contain protected confidential information of the other 56 plaintiffs or were designated
confidential under the protective order, Schmidt could agree at least as an initial matter to settle for
access to what has been filed with the court. These materials will provide Schmidt with the
necessary information and tools to proceed with obtaining counsel and to apprise him of the issues
and other evidence that might exist.
An additional wrinkle in the case, however, is the fact that many of the parties’ filings have
been maintained under seal. This was done pursuant to the protective order agreed to by the parties
and signed by the court. Like most protective orders, this one allowed the parties to designate
documents produced in the course of discovery “confidential” or “attorneys eyes only,” so as to
expedite the discovery process without emerging the court and counsel in repeated disputes over
what must be produced. The order provided that court filings, such as briefs, affidavits, and
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exhibits, that included information from documents designated “confidential” were to be filed under
seal. Of course, as the court pointed out at the hearing on Schmidt’s request, agreement by the
parties is not a sufficient basis upon which to order documents filed in a public court record sealed.
See Union Oil Co. of California v. Leavell, 220 F.3d 562, 567 (7th Cir. 2000) (“[T]he parties'
confidentiality agreement can not require a court to hide a whole case from view ....”); see also
Hicklin Engineering, L.C. v. Bartell, 439 F.3d 346 (7th Cir. 2006)(“What happens in the federal
courts is presumptively open to public scrutiny.”).

In order to maintain material filed with the

court in a case under seal, the court must make a finding of good cause. Fed. R. Civ. P. 26(c).
The local rules of the district require that when any party files with the court such material
under seal, the party must include with the filing “either: (1) a motion to seal the material pursuant
to this rule; or (2) an objection to the designation of the material as confidential and a statement that
the objection to the designation has been provided to the person claiming confidentiality.” General
L. R. 79(d)(7). If such an objection is made, the person having designated the material as
confidential may file a motion to seal under this rule within 21 days of the objection. Id. Any such
motion “must be accompanied by proof of good cause for withholding the material from the public
record.” General L. R. 79(d)(4). This procedure was not followed in this case. As a result, there
has been no showing of good cause to support the continued maintenance of filings under seal.
Based on the authority cited above, Schmidt requests that the entire record be unsealed.
Rather than unseal the entire record, the court will allow any party who wishes to maintain
previous court filings under seal to show cause within the following forty-five days why such
material should remain under seal. Any filings as to which such a showing is not made will be
unsealed. Schmidt is to be given access to those materials not maintained under seal, regardless of
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whether he consents to be bound by the protective order previously entered in the case. If he agrees
to be bound by the protective order, he may have access to the entire court record.
In conclusion and for the reasons stated herein, Schmidt’s motion will be GRANTED in
part and DENIED in part. Schmidt’s motion to vacate the protective order is denied. His motion
to compel his former attorneys to produce a copy of the complete file in his case is granted, subject
to the following limitations: (1) counsel need not provide Schmidt copies of personal information
provided by or relating to their other 56 clients that is not relevant to his case; (2) counsel may also
withhold material subject to provisions of the protective order the court entered on the stipulation
of the parties, assuming Schmidt agrees to be bound by it; (3) Schmidt must pay counsel for the
reasonable costs of producing the file, including the costs of conducting any review necessary to
avoid the release of material counsel is required to withhold. Finally, Schmidt’s request that all
court filings that were made under seal be unsealed will be granted unless within 45 days of this
order any party seeking to retain such filing under seal shows good cause why Schmidt and
members of the public should be denied access to it.
SO ORDERED this 13th day of March, 2013.

s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Judge

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