Opinion
C.A. No. 02C-04-235 RRC
Submitted: June 19, 2003
Decided: June 19, 2003
Upon Plaintiff's "Fourth Motion to Compel and for Attorneys' Fees, Costs and Sanctions." GRANTED IN PART; DEFERRED IN PART.
Melanie K. Sharp, Esquire, Young Conaway Stargatt Taylor, LLP, Wilmington, Attorney for Plaintiff
Dennis D. Ferri, Esquire, Morris, James, Hitchens Williams LLP, Wilmington, Attorney for Defendant Christiana Care Health Services, Inc.
Dear Counsel:
Plaintiff moves this Court to enter an order compelling defendant Christiana Care Health Services, Inc. ("CCHS") to produce what she contends are "the only documents [remaining] at issue," i.e., exhibits used by CCHS's fact witnesses during their January 22, 2003 depositions, which exhibits Plaintiff now argues have "repeatedly [been] ordered to be produced. . .[and] are simply clerical compilations of titles of other documents." Pl.'s Reply ¶ 7. CCHS contends that these exhibits, which the Court understands to be comprised of the "tables of contents" to various internal policy and protocol manuals and surgical suite "floor plans," are the "work product of its employees and [are] proprietary in nature[,]" and should therefore not be produced to Plaintiff absent the execution of a confidentiality order. CCHS's Resp. ¶ 8. This Court previously ordered CCHS to "promptly produce to Plaintiff all outstanding documents requested by Plaintiff" and suggested that counsel agree upon "any confidentiality order that may be appropriate[.]" Drysdale v. Noble, C.A. No. 02-04-235 RRC, 2003 WL 21140048, at *4 (Del.Super. May 12, 2003) (compelling CHHS to produce all exhibits utilized by fact witnesses during their depositions and refusing to conduct an in camera review of those documents which had been previously ordered to be produced, as suggested by CCHS).
At oral argument today, counsel for CCHS expressed concern that documents produced to Plaintiff's counsel may be used in future litigation against CCHS; in its Response, CCHS had requested that this Court enter an order that all documents previously produced "be held as confidential and returned to. . .[it] upon conclusion of this case[,]" and that "[a]ll recordings and all duplications of recordings or transcriptions of recordings" made by Plaintiff's counsel during discovery likewise be sent back to CCHS. Proposed Order Attached to CCHS's Resp. Also at oral argument, Plaintiff's counsel asked the Court to defer on the awarding of any costs, fees, or sanctions, pending the outcome of continued mediation in this case.
A court may issue a protective order permitting a party to keep secret discovered material "when good cause is shown." 23 AM. JUR. 2D Depositions and Discovery ¶ 76 (2002) (citing American Tel. Tel. Co. v. Grady, 594 F.2d 594 (7th Cir. 1978); Patterson v. Ford Motor Co., 85 F.R.D. 152 (W.D.Tex. 1980)); SUPER.CT.CIV.R. 26(c) ("[u]pon motion by a party . . . and for good cause shown, the Court . . . may make any order which justice requires . . .). Relatedly, this Court has recognized that "[a]s a general proposition, the goal of sharing or using discovery materials developed in one case with the litigants of another is appropriate. . . ." Wolhar v. General Motors Co., 712 A.2d 464, 467 (Del.Super.Ct. 1997). Thus, the Wolhar Court recognized, "[t]he great weight of authority . . . holds that such sharing is not only theoretically sound[,] but also justified. . . ." Id. (citing various cases, including Patterson, supra). This viewpoint recognizes that "pre-trial discovery must take place in the. . .public unless compelling reasons exist for denying the public access to the proceedings. . . ." Id. (citing Grady, supra).
Applying those rules here, the Court finds that Plaintiff's motion should be granted, insofar as CCHS must deliver those documents not yet produced to Plaintiff. CCHS's argument that the outstanding documents are not discoverable by Plaintiffs absent a protective order is unavailing, as a party seeking an order protecting confidential trade information "bears the burden of establishing good cause for the order by showing specifically that it will be harmed by disclosure." 23 AM. JUR. 2D Depositions and Discovery ¶ 77 (2002). CCHS has not shown specifically what harm will occur through the requested disclosure; consequently, it has not shown "good cause." Furthermore, the above-quoted language from the Wolhar case effectively counters CCHS's concern over the future use of the information discovered by Plaintiff in this case by litigants other than the Plaintiff.
The Court notes that, in its May 12, 2003 letter opinion, it stated that a confidentiality order "may" be appropriate.
This Court previously ordered CCHS to deliver to Plaintiff exactly those documents that she now seeks in her motion. CCHS had no basis upon which to object to full disclosure, as its "confidentiality" argument is not persuasive. The Court will, however, honor counsel for Plaintiff's request, and defer ruling on the award of any fees, cost, or sanctions. Accordingly, Plaintiff's Fourth Motion to Compel is GRANTED IN PART and DEFERRED IN PART. The documents in question shall be produced by June 27, 2003.
IT IS SO ORDERED.