Opinion
Civ. No. 99-2515-JWL.
Filed: May 30, 2000.
LINDA MARIE FEARS, pro se.
David C. Byerley, McKay Bell, Kansas City, MO, for plaintiff.
Michael J. Jerde, William E. Hanna, Wayne E. Smith, Morrison Hecker L.L.P., Kansas City, MO., WAL-MART STORES, INC., defendant.
MEMORANDUM AND ORDER
This matter is before the Court on Defendant's Motion for Protective Order (doc. 13). The Court will deny the Motion for two primary reasons, as discussed below.
First, Defendant has failed to provide a certification that it has in good faith conferred or attempted to confer with Plaintiff in an effort to resolve the dispute, as required be Fed.R.Civ.P. 26(c) and D.Kan. Rule 37.2. When Plaintiff pointed out this omission in her response to the Motion to Compel, Defendant merely stated in its reply brief that Defendant "was under the impression, after a conversation with plaintiff's attorney, that plaintiff's attorney would not be agreeable to a protective order." Doc. 21 at 2. This is not a sufficient certification of compliance, and does not contain the detail necessary to meet Defendant's burden under D.Kan. Rule 37.2 to "describe the steps taken by all counsel to resolve the issues in dispute." See also Miller v. Brungardt, No. 94-2518-GTV, 1996 WL 146725, at * 2 (D. Kan Mar. 28, 1996) (description of the steps taken to resolve dispute "should generally be stated with particularity, rather than in general terms").
In addition, it does not appear that the one conversation the Parties had regarding this issue satisfied their duty to to make a reasonable effort to confer. A "reasonable effort to confer . . . requires that counsel converse, confer, compare views, consult and deliberate." Simmons Foods v. Willis, No. 97-4192-RDR, 2000 WL 204270, at *1 (Feb. 8, 2000) (quoting Porter v. Brancato, No. 96-2208-KHV, 1997 WL 150050, at *1 (D.Kan. Feb. 24, 1997)).
Even if the Court were to disregard the failure to confer and the lack of proper certification, the Court would still deny the Motion on the merits. While the Court typically does not proceed to rule on the merits of a motion when the duty to confer and certification requirements have not been met, the Court will do so here in an effort to guide the Parties in drafting an appropriate protective order.
Defendant's proposed protective order does not describe or limit in any way the types of or the nature of the documents to be protected. The proposed order merely states that the following are to be protected: "[i]nformation requested by plaintiff and designated `confidential' or `produced pursuant to protective order' by defendant . . . including documents, videotapes, audiotapes and other materials."
Plaintiff objects to the proposed protective order as overly broad and because it gives Defendant the sole discretion to designate what materials are subject to the order. Plaintiff also objects to Defendant's conclusory and speculative allegations that the requested materials are proprietary and have been developed by defendant to give it "a competitive edge."
While the decision whether to enter a protective order is within the court's discretion, see Thomas v. International Bus. Mach., 48 F.3d 478, 482 (10th Cir. 1995), Fed.R.Civ.P. 26(c) nevertheless requires that the party seeking the protective order provide "good cause" for the order. Specifically, Rule 26(c) provides that upon a showing of good cause, a court "may make any order which justice requires to protect a party or person from annoyance, embarrassment oppression, or undue burden or expense." The party seeking a protective order has the burden to demonstrate good cause. Sentry Ins. v. Shivers, 164 F.R.D. 255, 256 (D.Kan. 1996).
In determining whether good cause exists to issue a protective order that prohibits the dissemination of documents or other materials obtained in discovery, "the initial inquiry is whether the moving party has shown that disclosure of the information will result in a `clearly defined and very serious injury.'" Zapata v. IBP, Inc., 160 F.R.D. 625, 627 (D.Kan. 1995) (quoting Koster v. Chase Manhattan Bank, 93 F. R. D. 471, 480 (S.D.N.Y. 1982)) (internal quotations omitted). The moving party must also make "a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements." Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n. 16, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981).
The Court does not find that Defendant has established good cause to support the requested protective order. As written, the proposed protective order would protect any and all documents that defendant might choose to designate as "confidential." The protective order fails to identify the specific documents or types of documents to be protected. Moreover, the Court is not persuaded by Defendant's conclusory allegations that its safety tapes and manuals regarding shelving stock are proprietary or that their disclosure would result in any clearly defined or serious injury.
For the foregoing reasons, Defendants' Motion for Protective Order (doc. 43) is hereby denied without prejudice. If, after making a reasonable effort to confer, the Parties are still unable to resolve this issue, Defendant may file another motion for protective order that complies with the certification requirements and that demonstrates good cause for the protective order.
IT IS SO ORDERED.
Dated in Kansas City, Kansas on this 30th day of May, 2000.