Coast attorney Deborah Trotter is at it again – and this time she’s challenging “secrets” by number in her Response to the whisper-in-your-ear Motion for Protective Order the great nuzzler Scot Spragins filed Lizana v State Farm!
Defendant identifies 46 documents in its privilege log that it claims qualifies for protection as trade secrets. However, the description of those 46 documents is vague and general. Defendant cannot meet its burden to make a “specific showing” that the document or information withheld qualifies for protection by beginning each description with the word “Specific.”
The Privilege Log from State Farms motion and excerpts from Lizana’s Opposition citing specific items by number with reference to related Rules and/or Code Sections cited in the Response (also by number!) follows — all supporting Trotter’s contentions:
The Uniform Local Rule 26.1(A)(1)(c) requires that “a party withholding information claimed privileged or otherwise protected shall submit a privilege log that contains at least the following information: name of the document; description of the document; date; author(s); recipient(s); and nature of the privilege. To withhold materials without such notice subjects the withholding party to sanctions under FED. R. CIV. P. 37 and may be viewed as a waiver of the privilege or protection.”
Defendant lists only three of those categories in its privilege log: 1) Document, 2) Description, and 3) Privilege. Defendant identifies 46 documents in its privilege log that it claims qualifies for protection as trade secrets. However, the description of those 46 documents is vague and general. Defendant cannot meet its burden to make a “specific showing” that the document or information withheld qualifies for protection by beginning each description with the word “Specific.”
The Mississippi Code Annotated sets forth the elements to determine whether information, including a formula, pattern, compilation, program, device, method, technique or process is considered a “trade secret” under Mississippi law. As used in this chapter, unless the context requires otherwise: (Miss. Code Ann. 75-26-3 Definitions)
(d) “Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique or process, that:
(i) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and
(ii) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
Trotter begins with item number listed third on the Privilege Log:
Defendant seeks to obtain a blanket protective order for 46 documents allegedly containing trade secret information. Defendant lists these 46 documents which it believes are responsive to Plaintiff’s requests in its privileged log1 accompanied by non-specific, vague and general descriptions.
…entry number three on Defendant’s privilege log lists the document “Catastrophe Certification Flood Study Guides.” The description for this entry is “Specific Instructions/Training Related to Handling of Flood Claims.” The privilege claimed is “Trade Secret.” Without the other Local Rule 26.1(A)(1)(c) required categories of date, author, and recipient, it cannot be determined whether the alleged claim of trade secret is legitimate. If the author of the document is FEMA and this is a document disseminated through the National Flood Insurance Program, then Defendant has no claim of privilege based upon trade secret. Without the required information, neither the Court, nor Plaintiff can determine whether there is a legitimate claim for protection of trade secret.
Also, entry number 44, lists the document “Depreciation Guide, Printed 01/12/2006.” The description of this document is “Specific Materials Related to Adjuster Training.” The privilege claimed is “Trade Secret.” Here too, without the authorship and recipients, it is unknown whether this is a guide created by Defendant for its sole use or wide dissemination, or a guide created by an entity in the construction or insurance industry. Without this required information, neither the Court, nor Plaintiff can determine whether there is a legitimate claim for protection of trade secret.
Further, entry number 45 lists “Lansing Vargo’s Working File Related to Hurricane Katrina.” The description is “Specific Issues Related to Handling of Hurricane Claims.” Again, Plaintiff, or the Court for that matter, is left without sufficient information to determine whether the alleged document(s) withheld qualify as trade secret information, which should be protected. Further, it is unclear whether these “Issues” contain more than one document, or whether Defendant’s blanket proposed protective order would also possibly seal information, such as reports, files, communications, and other relevant, discoverable, non-privileged, and non-protected material, as having been derived from, or possibly containing information from within these “Issues.”
Before citing the relevant section of the Mississippi Code, Trotter acknowledged the governing Rule:
The Federal Rules of Civil Procedure 26 (c) governs the Protective Orders in this case and states in pertinent part that “upon a motion by a party or by the person from whom discovery is sought….and for good cause shown….the court….may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: ….
(G) that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a designated way….”
There are numerous cases interpreting this language of the Federal Rules of Civil Procedure. Uniformly, courts hold that protective orders should be granted only if the moving party first establishes that specific information to be covered by the order falls within protected categories and then demonstrates that disclosure will be harmful…(citations omitted by SLABBED)
Last, the powerful summary moves from legal rules to legal scholars:
A number of legal scholars have recognized that the true motivation behind the tactics utilized by large defendants, in seeking to cloak information with the robe of secrecy, is to deny the plaintiff the benefit of coordinating discovery efforts, and to otherwise prevent the disclosure of potentially embarrassing internal information:
“Frivolous claims of confidentiality have been asserted to cause delay and disruption, to drive up discovery expenses, and make it difficult for opposing counsels to simply understand the information being sought.” Martin I. Kaminsky, Proposed Federal Discovery Rules for Complex Civil Litigation, 48 Fordham L. Rev. 907, 929 (1990).
Many courts, therefore, favor access to discovery conducted by other parties in collateral or similarly situated litigation. It makes the administration of justice more efficient. Any other result would require that “each litigant who wishes to ride a taxi to court must undertake the expense of inventing the wheel.” Ward v. Ford Motor Co., 93 F.R.D. 579, 580 (D. Colo. 1982). See also Wauchop v. Domino’s Pizza, Inc., 138 F.R.D.539, 546-47 (D. Ind. 1991) (Federal Rules of Civil Procedure should be construed to foster the just, speedy, and inexpensive determination of every civil action ….collaborative use of discovery material fosters that purpose.); Baker v. Ligett Group, Inc., 132 F.R.D. 123, 126 (D. Mass 1990)(To routinely require every plaintiff to go through a comparable, prolonged and expensive discovery process would be inappropriate.); Patterson v. Ford Motor Co., 85 F.R.D. 152, 154 (W.D. Tex. 1980)(The sharing of discovery information
between plaintiffs may reduce time and money which must be expended in similar proceedings, and allows for effective, speedy, and efficient representation.); Cipollone v.Liggett Group, Inc., 113 F.R.D. 86, 87 (D. N.J. 1986)(Maintaining a high cost of litigation for future advisories is not a proper purpose under Rules 1 or 26.); Wilk v.American Medical Ass’n, 635 F.2d 1295, 1301 (7th Cir. 1980) (That the expense of litigation deters many from exercising that right is no reason to erect gratuitous road blocks in the path of a litigant who finds a trail blazed by another.); U.S. v. Hooker Chemicals & Plastics Corp., 90 F.R.D. 421, 426 (W.D. N.Y. 1981) (Use of discovery fruits disclosed in one lawsuit in connection with other litigation and even in collaboration among plaintiffs attorneys, comes squarely within the purposes of Federal Rules of Civil Procedure.); Foltz v. State Farm Mut. Ins. Co., 331 F.3d 1122, 1131)(9th Circ. 2003) (This court strongly favors access to discovery materials to meet the needs of parties in collateral litigation.”)
For the above stated reasons, Plaintiff maintains the position that a “blanket” protective order such as the one sought by Defendant would be premature, overly broad and unreasonably restrictive of material that is relevant, discoverable, non-privileged, and non-protected and would be to the detriment of Plaintiff’s case and the public’s access to information , as well as, to the detriment of this court, other courts and other plaintiffs similarly situated.
A big SLABBED thank you to Plaintiff Raymond Lizana and Counsel Deborah Trotter for a job well done!