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Butler v. Daimler Trucks North America LLC

United States District Court, D. Kansas

January 10, 2020

DAMIAN BUTLER, et al., Plaintiffs,


          James P. O'Hara U.S. Magistrate Judge

         In this product-liability case, plaintiffs allege defendant Daimler Trucks North America LLC (“DTNA”) is liable for an accident in which a semi-tractor truck collided with three vehicles, killing five people.[1] Plaintiffs bring strict-liability and negligence claims premised on DTNA's failure to equip the semi-tractor with forward-collision-warning (“FCW”) and automatic-emergency-braking (“AEB”) systems.

         The court held a scheduling conference on December 10, 2019. During the conference, the parties informed the court that they agree there is good cause under Fed.R.Civ.P. 26(c) for the entry of a protective order to govern documents they will exchange in discovery, but they disagree about the scope and form of the order. The court directed them to confer further about a proposed protective order and set a procedure for filing a motion to resolve any remaining disputes.[2] The parties have now filed a joint motion (ECF No. 38) asking the court to decide two disputed issues:

(1) whether plaintiffs' counsel should be allowed to share documents defendants produce and designate as confidential with lawyers not involved in this case; and
(2) whether the protective order should require that, after the case is concluded, counsel return or destroy confidential documents produced by other parties.

         Rule 26(c) “confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required.”[3] For the reasons stated below, the court declines to include a sharing provision in the protective order and accepts DTNA's proposal that counsel be required to return or destroy confidential documents within ten years of the conclusion of litigation.

         1. Whether the Protective Order Should Include a Sharing Provision

         The parties agree that the protective order generally should prohibit disclosure of discovery designated as “confidential” to persons outside the litigation.[4] But plaintiffs request that the order include an exception that would allow plaintiffs' counsel to share confidential information with “lawyers involved in pending or contemplated lawsuits against Defendants in which the claims or allegations include the failure to equip heavy trucks with [FCW] and [AEB] system technologies as standard equipment” if such persons agree to be bound to the terms of the protective order and to this court's jurisdiction.[5]Plaintiffs assert such “sharing provisions” are common in courts across the country and create efficiencies in the judicial system by alleviating costly discovery for parties in related cases. They assert sharing provisions reduce the volume of discovery requests and make proceedings more truthful because the responding party will aim to be consistent in addressing similar issues across suits. Plaintiffs further contend DTNA's confidential materials will be protected because they will not be shared unless the recipients in collateral litigation agree to be bound by the protective order and to submit to the court's jurisdiction.

         DTNA opposes the inclusion of a sharing provision in the protective order. DTNA submits that disclosure of its highly sensitive business information should be limited to the greatest extent possible to prevent compromise of the information, particularly since dissemination would cause it competitive harm. DTNA notes limiting disclosure to this case does not harm plaintiffs' ability to litigate their claims. Finally, DTNA argues a sharing provision would actually decrease efficiency in this action, as the court would be forced to monitor, and potentially litigate, compliance with the protective order by nonparties.

         The parties cite caselaw from across the country supporting their respective positions-jurisdictions appear to be split on whether sharing provisions are appropriate or useful. In the District of Kansas, however, judges have consistently rejected the inclusion of sharing provisions in protective orders. In McKellips v. Kumho Tire Co., for example, the plaintiffs made many of the same arguments advanced by plaintiffs here: that adding a sharing provision in a products-liability action “promotes efficiencies in terms of discovery for both plaintiffs' attorneys and for the defendant, reduces discovery costs, promotes public safety, and facilitates the identification of discrepancies or inconsistencies in discovery produced by defendants in different cases.”[6] Magistrate Judge Theresa James rejected the plaintiffs' request, noting that including a “preemptive” sharing provision in a protective order places the power solely in the hands of plaintiffs' counsel to determine which outside attorneys meet the criteria for disclosure of defendants' confidential information, with no advance notice or opportunity to object given to defendants.[7] Judge James was not persuaded that a sharing provision would promote efficiency, and she was concerned that such a provision would “open the barn doors” to disclosure of confidential information to “yet-unidentified collateral litigants.”[8] The better course, she determined, was to permit the plaintiffs to make sharing requests on a case-by-case basis, should they become aware of other product-liability cases involving similar allegations against the defendants.

         In Hilton v. Sedgwick County, Magistrate Judge Karen Humphreys also rejected the inclusion of a sharing provision in a protective order. Judge Humphreys stated she agreed with the decision in McKellips that it is “more appropriate to make a decision regarding the disclosure of confidential information to parties in collateral litigation ‘on a case-by-case basis during the course of this litigation.'”[9] Plaintiffs have not articulated any way in which McKellips or Hilton was wrongly decided. In fact, the cases cited by plaintiffs support this case-by-case approach, which allows a court to evaluate a specific collateral litigant's request and need for shared discovery.[10]

         Plaintiffs note that the Tenth Circuit, in United Nuclear Corp. v. Cranford Ins. Co., upheld the modification of a protective order to permit collateral litigants to access information produced in discovery.[11] But as McKellips and Hilton observed, United Nuclear is distinguishable in that known collateral litigation was already proceeding and could be evaluated by the district court-a preemptive sharing provision placing sole power in plaintiffs' counsel, without oversight by the court or a chance to be heard by defendants, was not at issue.[12] More recently, the Tenth Circuit considered a protective order containing a non-sharing provision that prevented the parties “from sharing or using materials defined as ‘proprietary' and ‘confidential' for any purpose except preparation for trial unless otherwise authorized by the disclosing party or the court, ” and enforced the provision.[13]

         After considering the issue, the court finds the reasoning in McKellips and Hilton persuasive. A preemptive sharing provision places unilateral decision making with plaintiff's counsel, eliminates the opportunity for defendants to weigh in, and removes control from the court. The court agrees with DTNA that even given a recipient's agreement to be bound by the protective order, the inclusion of a sharing provision greatly increases the risk that DTNA's commercially sensitive information will be obtained by competitors.[14] Sharing discovery would not further the efficient resolution of this case and would impose an additional burden on the court to monitor non-parties' compliance with the protective order for a period of, as set forth below, more than ten years.[15] Plaintiffs have not addressed the practical concerns raised by DTNA about how the court would enforce the protective order with respect to non-parties. DTNA's interest in protecting its confidential and proprietary information, and the court's interest in bringing this case to efficient resolution, outweigh plaintiffs' less-tangible interests in aiding other potential would-be litigants who may only be considering bringing suit against defendants.[16]

         The court finds the preemptive and broad sharing provision requested by plaintiffs ill-advised at this early stage of the case and, therefore will not include it in the protective order. However, as this case develops, should plaintiffs contend there is good cause to share specific information produced by DTNA with a specific third-party, plaintiffs may file a targeted motion with the court seeking ...

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