Opinion
C.A. No. S15C-05-006 RFS
02-14-2017
Re: Nancy Hammer v. Howard Medical, Inc., Howard Industries, Inc.
Nancy Hammer P.O. Box 492 Nassau, Delaware 19969 Dennis L. Schrader, Esq. R. Eric Hacker, Esq. Morris James Wilson Halbrook & Bayard, LLP 107 W. Market Street P.O. Box 690 Georgetown, Delaware 19947
RICHARD F. STOKES JUDGE Nancy Hammer
P.O. Box 492
Nassau, Delaware 19969 Dennis L. Schrader, Esq.
R. Eric Hacker, Esq.
Morris James Wilson Halbrook & Bayard, LLP
107 W. Market Street
P.O. Box 690
Georgetown, Delaware 19947 Upon Defendants' Motion for Protective Order.
Denied. Dear Parties:
On August 8, 2016, Howard Medical, Inc. and Howard Industries, Inc. ("Defendants") filed a Motion for Protective Order. For the reasons stated below, the Motion is DENIED.
Defendants argue that certain documents subject to discovery are confidential and need to be protected from improper use after disclosure. The potentially confidential documents are financial in nature and include invoices, payment histories, and employment records. Defendants further state that these documents "are not publically available."
Def.'s Mot. Protect. Order 1.
Case law establishes that for a court to grant a protective order, the seeking party must establish that good cause exists for the order. To determine whether good cause exists, the Court should balance the public and private concerns relating to the protective order. However, the party seeking the order must first demonstrate that there is a need for protection. The Court in Pansy v. Borough of Stroudsburg, discussed the duty of the moving party: "Good cause is established on a showing that disclosure will work a clearly defined and serious injury to the party seeking closure. The injury must be shown with specificity. Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not support a good cause showing."
Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994). This case applies to protective orders sought concerning settlement agreements, but succinctly reiterates and extends the general protective order standard laid out in Smith v. Bic Corp., 869 F.2d 194, 199 (3d Cir. 1989).
Id.
Id. (internal citations omitted).
If the Court is satisfied that real harm could result from the information's disclosure, it must engage in a balancing of the potential harm to the disclosing party and the importance of disclosure to the public. In this analysis, the Court may weigh the interests of privacy, whether or not the order was sought for a legitimate purpose, and whether free information sharing would promote fairness and efficiency. Additionally, when "a case involves private litigants, and concerns matters of little legitimate private interest, that should be a factor weighing in favor of granting or maintaining in order of confidentiality."
Id.
Id.
Id.
Here, the Court is not convinced that Defendants will suffer actual harm unless the protective order is granted. There is nothing in the blanket statement that "The documents in question include confidential, financial documents (such as invoices, payment histories, and employment records) that are not publically available and in which unrelated third parties hold no independent interest" that can be construed to indicate that Defendants will suffer real harm in the absence of a protective order. Defendants have merely made broad allegations of harm which are unsupported by specific examples or articulated reasoning. There is no argument alleging that Defendants' will suffer a clearly defined and serious injury in the event of disclosure. In short, no harm has been argued with specificity. Therefore, the Court is not convinced that the protective order is necessary to prevent harm resulting from disclosure of discovery documents. As a result, there is no need to continue the analysis.
Although not necessary for the result, it is noted that Howard's filings came after the time for the filing of a protective order. Hammer's Second Request for Production of Documents was filed on July 1, 2016. Allowing service by mail of three days would extend the time to July 4, 2106. With the holiday excluded, a Rule 26 (c) motion should have been filed no later than August 6, 2016. This Motion was filed on August 8, 2016. --------
For the foregoing reasons, Defendants' Motion for Protective Order is DENIED.
IT IS SO ORDERED.
Very truly yours,
/s/_________
Richard F. Stokes, Judge Cc: Prothonotary
Nancy Hammer
Dennis Schrader, Esq.
R. Eric Hacker, Esq.