What’s the score? 0 – 2 on tail-wagging-dog Protective Orders

Right of the bat, we’re going to find out if I cut my 7th inning stretch short.   Frankly, what I found when I later turned my attention to the docket of the day to check for any additions in cases SLABBED made me wonder if one day of reflection was going to be sufficient.

Magistrate Judge Parker pitched a Protective Order to State Farm in Lizana and Magistrate Judge Walker tossed the Company another in Montet .  Since it took Parker 2 (pages) to do what Walker did in 7, Parker is up first for examination:

State Farm has cited numerous cases within this jurisdiction, with facts and issues very similar to those involved in this matter, wherein protective orders have been entered with respect to the same types of information at issue here. As in those cases, State Farm has demonstrated good cause for the entry of a protective order and, accordingly, the motion will be GRANTED.

Walker said much the same, however:

The court, being duly advised in the premises, finds that good cause exists for the issuance of a Protective Order; therefore, it is ORDERED and ADJUDGED…

Now, a good portion of my 7th inning stretch was devoted to reflecting on “good cause” for a protective order in discovery.  I’ve observed that counsel for both parties in a case and the District Court “hang their hat” with the Fifth Circuit and, since I’m neither a lawyer nor an officer of the Court, I decided that I’d follow and hang mine on the 5th’s order quoted in the most recent SLABBED update on Montet which clearly states:

The Rule 26(c), by its own language, and the case law, provide that the burden is on the party wishing to obtain a protective order to show that good cause exists for the order. To establish that good cause exists that “party must show that a specific prejudice or harm will result if no protective order is granted.”

I searched for where State Farm demonstrated “a specific prejudice or harm” for each item on the log, as Judge Parker claimed and looked at State Farm’s motion for the “premise” Judge Walker claimed – and point out that I’m wearing a brand new pair of glasses  – and could not find either the demonstration or the premise.

All I saw was what I’ve been seeing all along, the tail wagging the dog; i.e. State Farm setting the Court’s standard for protective orders – and I’ve yet to find the FRCP Rule permitting a Court to default.

Interestingly enough, Judge Walker devoted everything other than the two lines quoted above to define the terms of the Order with the specificity; yet, he did not require State Farm to provide the specificity  required to show good cause.

Judge Parker went far beyond that and made me glad I’d hung my hat with the 5th.  Otherwise, it would have been difficult to scratch my head over his head-scratching suggestion the Rule did not apply to State Farm at all.

Plaintiff’s argument over the sufficiency of State Farm’s privilege log is misplaced. Such logs are generally used to allow the party seeking documents to determine whether they desire to seek production of the withheld records. Here the records at issue are being produced, albeit pursuant to a protective order. Plaintiff will not have to rely on State Farm’s privilege log to determine what information is contained in the 46 documents deemed trade secrets by State Farm. Instead, he will have the documents themselves.

Not too long ago, I pointed out it took the Court two months to organize the document’s in State Farm’s “privilege dump” for Judge Walker’s in camera review.  I’d go so far as to guess whoever had to type the results of Walker’s review keeps a letter of resignation handy and waves it at the judges if one dares mention protective order.

The 5th Circuit understood the potential for such a nightmare, however, and adopted Judge Posner’s position:

Judge Posner recognizes that in cases with large numbers of documents the district or magistrate judge is often not in a position to make the good cause determination on a document by document basis, but emphasizes that the party seeking protection must in good faith describe a “properly demarcated category of legitimately confidential information.” Citizens First National Bank, 178 F.3d 943, 946.

Uniform Local Rule 26.1(A)(1)(c) defines “properly demarcated” as 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.

The privilege log in Lizana looked like this:

-lizana-protective-order2

However to be compliant with the related local rules and FRCP, it should have looked like this – although I obviously made up the missing information.

model privilege log2

When document descriptions are written “by the rules” there should be no need for in camera inspection unless a document is questioned.  However, a wise court will have an organized way of conducting random spot checks.

Judge Parker reads the various rules in a way that leads him to believe no privilege log is needed because documents are not actually withheld.

Plaintiff’s argument over the sufficiency of State Farm’s privilege log is misplaced. Such logs are generally used to allow the party seeking documents to determine whether they desire to seek production of the withheld records. Here the records at issue are being produced, albeit pursuant to a protective order. Plaintiff will not have to rely on State Farm’s privilege log to determine what information is contained in the 46 documents deemed trade secrets by State Farm. Instead, he will have the documents themselves.

However, his position ignores both reality and case law.  Reality is easier, so we’ll start there.

What we’ve learned from briefs filed in these cases and Bossier points out other issues with protective orders the Court needs to address:

  • documents classified as privilege that are unrelated to the claim, and
  • documents that provide plaintiffs with evidence but have the needed information redacted.

The end result is a needless increase in the time and cost of litigation.  Judy Guice, for example, reported the third set of documents delivered in Bossier contained approximately 4,000 pages. The total of all three sets could easily exceed 12,000.

These “privilege dumps” do more than add time and cost to litigation.  They fuel challenges from plaintiff’s counsel; add time and cost to litigation; create ill will between the parties and the parties and the court; and, can tie the court’s schedule in knots and/or even bring it to a halt.

Judge Parker’s view, apparently shared by others, mistakenly sees the dispute over protective orders as one between the court and the parties:

The judge is the primary representative of the public interest in the judicial process and is duty-bound therefore to review any request to seal the record (or part of it). Citizens First National Bank, 178 F.3d 943, 945.

Chances are this tail-wags-the-dog approach began in the earliest days of Katrina when everyone’s help was needed

SLABBED looks back so that we may move forward – mindful we must respect the past, remember that it was once all that was humanly possible.

In part 2 of this post, we’ll look at another recent filing, the options for the Court to implement a just and efficient process protecting document, and how such a process bestows privilege with justice for all.

6 thoughts on “What’s the score? 0 – 2 on tail-wagging-dog Protective Orders”

  1. One of the best posts ever on this blog. This post is a nice compliment to the Rule 30(b)(6) post a few weeks ago. When the two are read together, a distinct pattern is observed.

    These willy-nilly protective orders, in additon to everything discussed in the post, also serve to “run out the clock” in a USDC where a trial date is scheduled, pursuant to Rule 16, before discovery begins. Tick tock!!!

  2. Thank you.

    There’s more to the pattern but I really believe a lot of what looks otherwise is Katrina fallout (per the introductory “keeping score” post I put up first)

    I’ve been trying to figure out how I could volunteer to get these folks a little better organized. No cost, proven expertise in systems development.

    I suppose I could wear black suit and put my flip flops in my purse, do heels with stockings and see if I could just slip in and start putting charts up.

    I hadn’t picked up on setting trial date before discovery but I’ve got a post coming that ponders what one can put on a mediation table if there is a protective order and no discovery.

    Honestly, I have begun to wonder if the opposite of earwigging is flipping your wig.

  3. Neither of these judges ever even acknowledged that SF lied for months on end, representing to the court and litigants throughout Katrina that it had no email. Motions for sanctions were ignored or cast aside. Abuse beyond any oath abiding judge’s imagination.

  4. Excellent post Nowdy on how things should work. Like I’ve always said the fix was in from the beginning. These cases are so flawed the problem becomes how to remedy the judicially inflicted damage.

    The shame in all of this is that every doc was already in Walker’s possession delivered him with a big red bow couretesy of Kerri and Cori Rigsby. He not only prevented policyholder’s from gaining access to the saleints details he ignored the contents.

    Certain insurers committed criminal acts that have been covered up under the color of law. Judge Vance is still waiting for her explanation……

    sop

  5. I know it looked like a “fix” Sop, but it could have been a combination of the scheme and a schema that got things off on the wrong foot.

    The problem with the courts is that once there is a “wrong foot” the system’s reliance on precedents means judges drag that wrong foot forward until there is some significant reason to overturn it.

    I’ve read that any number of places but I’ve never read what “significant” means in that context – and I’m beginning to think it’s something like the parting of the Red Sea.

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