Opinion
Civil Action No. 02-2637-JWL.
August 29, 2003
MEMORANDUM AND ORDER
This matter is before the Court on Defendants' Motion for Protective Order (doc. 33). Defendants ask the Court to enter a "blanket" protective order limiting the dissemination of certain documents and information. Plaintiff objects to the scope of the proposed order. The Court will deny the motion for two primary reasons, as discussed below.
I. Defendants' Failure to Provide Certification That They Have Satisfied the Duty to Confer
Defendants have failed to provide a certification that they have in good faith conferred or attempted to confer with Plaintiff in an effort to resolve the dispute, as required by Federal Rule Civil Procedure 26(c) and D. Kan. Rule 37.2. Defendants merely state that "[d]espite efforts to reach a compromise, the Parties have been unable to agree about the scope and terms of a Protective Order." This is not a sufficient certification of compliance, and does not contain the detail necessary to meet Defendants' burden under D. Kan. Rule 37.2 to "describe the steps taken by all counsel to resolve the issues in dispute."
Doc. 33 at p. 1.
See also Fears v. Wal-Mart Stores, Inc., No. 99-2515-JWL (D. Kan. May 30, 2000) (quoting 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").
II. Defendants' Failure to Establish Good Cause to Support the Protective Order
Even if the Court were to disregard Defendants' failure to properly certify that they have satisfied their duty to confer, 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 Rule 37.2 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.
A. Standard for Ruling on a Motion for Protective Order
The decision whether to enter a protective order lies within the court's discretion. Federal Rule of Civil Procedure 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.
Thomas v. Int'l Bus. Mach., 48 F.3d 478, 482 (10th Cir. 1995).
Reed v. Nellcor Puritan Bennett, 193 F.R.D. 689, 691 (D. Kan. 2000); 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.'" The moving party must make "a particular and specific demonstration of fact, as distinguished from stereo typed and conclusory statements."
Reed, 193 F.R.D. at 691 (internal quotations and citations omitted).
Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n. 16 (1981).
The Court holds that Defendants have failed to establish good cause to support their requested protective order. The proposed protective order allows the "Producing Party" to designate as confidential any information that the Producing Party "believes in good faith is confidential, private or personal information relating to any individual Party or employee or former employee of Defendant, which the Producing Party would not normally reveal to third parties except in confidence, or has undertaken with others to maintain in confidence." Although the proposed protective order states that the contents of all employee or former employee personnel files are to be deemed confidential and therefore subject to the protective order, the protective order is much broader than that. As written, the proposed protective order would protect any document or piece of information that the "Producing Party" unilaterally designates as such.
Proposed Protective Order, ¶ 1.3.
The Court recognizes that personnel files and employee records are confidential in nature and are generally entitled to protection from wide dissemination. The proposed protective order, however, is not limited to such records. By failing to identify the specific documents or types of documents to be protected by the proposed protective order and by failing to demonstrate "a clearly defined and very serious injury" that would occur if the protective order is not entered, Defendants are unable to establish the "good cause" required to support their request for entry of a protective order.
See Williams v. Board of County Comm'rs of Unified Gov't, No. 98-2485-JTM, 2000 WL 133433, at *1 (D. Kan. Jan. 21, 2000); Dahdal v. Thorn Americas, Inc., No. 97-2119-GTV, 1997 WL 599614, at*1 (D. Kan. Sept. 15, 1997).
The Court also finds objectionable the provision protecting deposition transcripts. Paragraph 2 of the proposed protective order provides that all deposition transcripts are automatically deemed confidential and protected by the protective order for thirty business days after their receipt by counsel. This provides counsel with the opportunity to review the transcript to determine whether it contains confidential information so as to warrant long-term protection under the protective order. The Court understands how such a provision would be helpful to counsel. The Court, however, cannot find that such a provision is necessary to prevent any "clearly defined and very serious injury," and, thus, finds that Defendants have failed to establish good cause to support this particular provision.
Defendants argue that their proposed protective order is a "blanket" protective order that is acceptable under United Phosphorus Ltd. v. Fox. The Court disagrees, as the Court finds the facts of United Phosphorous clearly distinguishable from those presented here. In United Phosphorus, the plaintiff and one of the defendants were direct competitors of one another. Prior to the scheduling conference and before the formal discovery period began, the plaintiff asked defendants to provide it with information concerning the business affairs of the competing defendant. The plaintiff sought a protective order that would protect the confidentiality of those business records and the plaintiff's own business records. This Court held that the plaintiff had made "a threshold showing of good cause," establishing that discovery" would involve the disclosure of "confidential . . . business records of a competitive company." In so ruling, the Court noted that the defendants who were objecting to the protective order did not dispute that the requested material should be maintained as confidential. Rather, the defendants only argued that the entry of a protective order as to this particular material was premature because the case was in its early stages and no discovery requests or objections were outstanding.
No. 03-2024-JWL, 2003 WL 21241847 (D. Kan. May 2, 2003).
Id. at *1.
Id.
Id., at *2.
Id.
Id. at *1, 2.
In contrast, in this case, the protective order is not limited to a narrow category of documents. Instead, it covers any document that a party desires to designate confidential. Also in contrast to United Phosphorus, Plaintiff does not agree that all of the materials covered by the protective order should be maintained as confidential. Thus, unlike the moving party in United Phosphorus, Defendants in this case have not made a showing of good cause for entry of a protective order.
In light of the above, the Court will decline to enter the protective order in the form submitted by Defendants and will deny the motion. The Court, however, encourages the parties to make a reasonable effort to confer to resolve these issues and to submit for approval a narrowly drawn, joint protective order specifically defining the items to be covered by the order. If, after making a reasonable effort to confer, the parties are still unable to resolve this issue, Defendants may file another motion for protective order that complies with the certification requirements and which demonstrates good cause for the protective order.
IT IS THEREFORE ORDERED that Defendants' Motion for Protective Order (doc. 33) is denied.
IT IS SO ORDERED.