Shreves v. Frontier Rail Corporation et al, No. 1:2019cv03012 - Document 41 (E.D. Wash. 2020)
Court Description: ORDER GRANTING 33 MOTION FOR PROTECTIVE ORDER Signed by Judge Salvador Mendoza, Jr. (AY, Case Administrator)
Download PDF
<![CDATA[
Shreves v. Frontier Rail Corporation et al Doc. 41 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 Feb 21, 2020 2 SEAN F. MCAVOY, CLERK UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 4 5 6 7 8 9 10 JAKE SHREVES, No. 1:19-cv-03012-SMJ Plaintiff, v. ORDER GRANTING MOTION FOR PROTECTIVE ORDER FRONTIER RAIL CORPORATION and YAKIMA CENTRAL RAILWAY CORPORATION, Defendants. 11 12 Before the Court is Defendants Frontier Rail Corporation and Yakima 13 Central Railway Corporation’s Motion for a Protective Order, ECF No. 33. Having 14 reviewed the record and the file in this matter, the Court is fully informed. For the 15 reasons set forth below, the Court grants Defendants’ motion and incorporates the 16 proposed protective order with limited exception. 17 BACKGROUND 18 Plaintiff brought this action under the Federal Employer’s Liability Act 19 (FELA) to recover for injuries he sustained after allegedly falling into a hole near 20 railroad tracks while he alleges he was acting as an employee of Defendants. See ORDER GRANTING MOTION FOR PROTECTIVE ORDER - 1 Dockets.Justia.com 1 ECF No. 10 at 3–7. Plaintiff also brought claims under the Federal Railroad Safety 2 Act (FRSA) alleging he was terminated in retaliation for reporting his workplace 3 injury and hazardous workplace conditions. See generally ECF No. 10. 4 The parties have begun to engage in discovery and propounded requests for 5 production of documents. See, e.g., ECF No. 37-4. Defendants represent they have 6 sought discovery regarding Plaintiff’s medical history, including requests for 7 production of medical records and subpoenas to Plaintiff’s medical providers. ECF 8 No. 33 at 3–4. Plaintiff sought production of several categories of documents, 9 including Defendants’ “corporate structure and ownership” and “year-end 10 profit/loss statement[s]” as well as “Plaintiff’s entire, unredacted, personnel file,” 11 and “each and every document and communication . . . between [the Occupational 12 Safety and Health Administration (“OSHA”)] and/or the Department of Labor and 13 [Defendants or defense] counsel in connection with Plaintiff’s OSHA Complaint 14 under the FRSA.” See ECF No. 37-5. 15 On November 11, 2019, defense counsel emailed Defendants’ discovery 16 responses to Plaintiff’s counsel. ECF No. 34-1 at 7. Defense counsel also attached 17 a proposed stipulated protective order intended to govern the production of 18 confidential information in discovery. Id.; see also ECF No. 33-1 (proposed 19 protective order). Four days later, Plaintiff’s counsel responded. Id. at 6. Plaintiff’s 20 counsel declined to stipulate to the proposed protective order because Defendants ORDER GRANTING MOTION FOR PROTECTIVE ORDER - 2 1 failed to provide justification for it. Id. Plaintiff’s counsel also described 2 Defendants’ discovery responses as “ridiculous” and wrote that if defense counsel 3 was “confused, or unsure how to comply with the federal rules, please let me know 4 and I will be happy to provide you with some guidance.” Id. at 7. 5 Several days later, defense counsel responded that a protective order was 6 necessary to protect “confidential business information” as well as information 7 about individuals not party to the litigation. Id. at 5. Defense counsel also made 8 clear the proposed protective order applied equally to confidential documents 9 produced by Plaintiff, namely Plaintiff’s medical records. Id. Plaintiff’s counsel 10 replied twenty minutes later, again declining to stipulate to the protective order, and 11 reiterating Plaintiff’s position that Defendant’s discovery responses were “full of 12 improper and unsubstantiated boilerplate objections.” Id. at 4. 13 The next day, defense counsel responded that he hoped to reach agreement 14 to avoid unnecessary motions practice and to protect against “dissemination of 15 confidential business information and personal information.” Id. at 3. Plaintiff’s 16 counsel replied: 17 // 18 // 19 // 20 // ORDER GRANTING MOTION FOR PROTECTIVE ORDER - 3 1 2 3 4 5 6 7 8 9 10 So here’s how this actually works. As the party seeking a protective order, the burden is yours to demonstrate that one is necessary. That requires you to specify what exactly you feel needs to be protected. So for example, you literally have to identify whatever the document is, what the document contains that you think makes it subject to a protect [sic] order, and why there would be harm to your client in the absence of a protective order. You are trying to do this in reverse and you simply are not going to get agreement from us by making vague references to confidential business information and personal information. Quit screwing around and wasting everyone’s time. Fix your discovery responses to reflect the fact that you all have law degrees and a rudimentary understanding of the [Federal Rules of Civil Procedure]. And if you manage to make some actual showing of a need for a protective order we can discuss then. But the time for you to do so is quickly running out because we are ready to file our motion to compel. Id. at 3. 11 Defense counsel responded and once again stated Defendant’s desire to reach 12 agreement without the Court’s involvement. Id. at 2. Plaintiff’s counsel responded: 13 “You have not identified anything that needs to be protected. Please stop emailing 14 on this subject.” Id. The parties exchanged a similar pair of emails but failed to 15 reach a solution. Id. at 1. 16 On November 22, 2019, Defendant moved for a protective order. See ECF 17 No. 33. Defendants represent one is needed because the employment relationship 18 between Plaintiff and Defendants is disputed and will necessitate discovery of 19 confidential business information. Id. at 7. Defendants also contend discovery will 20 include private information of current and past employees who are not party to the ORDER GRANTING MOTION FOR PROTECTIVE ORDER - 4 1 litigation, as well as Plaintiff’s private health records. Id. at 8. 2 Plaintiff argues a protective order is unnecessary because Defendants have 3 not identified any information warranting protection and because their discovery 4 responses include “boilerplate objections.” ECF No. 36 at 2. Plaintiff also argues 5 Defendants failed to engage in a meaningful “meet-and-confer” before moving for 6 a protective order. Id. at 3–5. As such, Plaintiff requests an award of fees and costs 7 incurred in briefing his response to Defendants’ motion, contending Defendants’ 8 conduct is “at the height of bad faith.” Id. at 10. 9 LEGAL STANDARD 10 Under Federal Rule of Civil Procedure 26(b)(1), “[p]arties may obtain 11 discovery regarding any nonprivileged matter that is relevant to any party’s claim 12 or defense.” This is a liberal standard, and information “need not be admissible in 13 evidence to be discoverable.” Id. But the right to discover relevant information is 14 neither absolute nor immune from restriction. Accordingly, “[t]he court may, for 15 good cause, issue an order to protect a party or person from annoyance, 16 embarrassment, oppression, or undue burden or expense,” including by prescribing 17 the terms under which discovery is provided. Fed. R. Civ. P. 26(c)(1). 18 The party seeking a protective order “bears the burden of showing specific 19 prejudice or harm will result if no protective order is granted. Phillips ex rel. Estates 20 of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210–11 (9th Cir. 2002) ((citing ORDER GRANTING MOTION FOR PROTECTIVE ORDER - 5 1 Beckman Indus., Inc. v. Intern. Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992)). Broad 2 and unsubstantiated concerns premised on conjecture are insufficient. Id. If the 3 moving party establishes good cause warrants a protective order, the Court must 4 weigh “the public and private interests to decide whether a protective order is 5 necessary.” Id. (citing Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 6 1995)). The Court is vested with “broad discretion . . . to decide when a protective 7 order is appropriate and what degree of protection is required.” Seattle Times Co. v. 8 Rhinehart, 467 U.S. 20, 36 (1984). DISCUSSION 9 10 A. Defendants satisfied the meet-and-confer requirement 11 Prior to bringing a motion for a protective order, a litigant must meet and 12 confer with the opposing party “in an effort to resolve the dispute without court 13 action,” or at least attempt to do so. Fed. R. Civ. P. 26(c)(1). Plaintiff contends 14 Defendants failed to engage in a “meaningful” meet-and-confer and are therefore 15 prohibited from seeking the Court’s intervention. ECF No. 36 at 3. 16 Having reviewed the record in this matter, the Court concludes Defendants 17 attempted in good faith to meet-and-confer before moving for a protective order. 18 On no fewer than four occasions, defense counsel invited Plaintiff’s counsel to 19 discuss the proposed protective order, and the evidence Defendants believed 20 necessitated it, over the phone. See ECF No. 34-1 at 1–7. Plaintiff’s responses to ORDER GRANTING MOTION FOR PROTECTIVE ORDER - 6 1 those invitations were consistently hostile and unprofessional.1 See, e.g., id. at 3 2 (“Fix your discovery responses to reflect the fact that you all have law degrees and 3 a rudimentary understanding of the [Federal Rules of Civil Procedure].”). At one 4 point, Plaintiff’s counsel told defense counsel to cease further attempts to discuss 5 the proposed protective order and arranging a time to meet and confer. See id. at 2 6 (“You have not identified anything that needs to be protected. Please stop emailing 7 on this subject.”). 8 To satisfy the meet-and-confer requirement of Rule 26(c)(1), defense counsel 9 needed only “attempt[] to confer” in good faith with opposing counsel. Defense 10 counsel was not obligated to, as Plaintiff appears to contend, provide or describe 11 specific, individualized documents or information warranting a protective order. 12 See ECF No. 36 at 3–4. Even if defense counsel were so obligated, it is possible 13 14 15 16 17 18 19 20 The Court wishes to emphasize that conduct such as Plaintiff counsel’s reflected in the email exchange with defense counsel is unacceptable and will not be tolerated moving forward. See generally ECF No. 34-1. Counsel practicing before this Court are to conduct themselves with fairness and civility. See ECF No. 30 at 15; see also LCivR 83.1(j)(1) (“I will be courteous and fair.”), (5) (“I will always conduct myself professionally, as if I were in the presence of a judge.”). Plaintiff’s counsel, admitted pro hac vice, is held to this standard, yet his responses to defense counsel’s emails fell below it. 1 Plaintiff’s counsel attributes his conduct to “irritation and aggravation” with “obstructionist discovery behavior.” ECF No. 36 at 4. The proper method to obtain relief for those frustrations is a motion filed with the Court, not berating or belittling the qualifications of opposing counsel. Plaintiff’s counsel is therefore warned that continued open hostility or discourteous conduct, regardless of to whom it is directed or how it is justified, will result in sanctions. ORDER GRANTING MOTION FOR PROTECTIVE ORDER - 7 1 defense counsel would have offered greater detail about the evidence for which 2 Defendant sought protections during a telephonic meet-and-confer. Plaintiff’s 3 counsel repeatedly spurned defense counsel’s offers to engage in such discussions. 4 The Court will not now entertain his complaints that defense counsel failed to try. 5 B. Defendants have shown good cause for a protective order 6 The Court finds Defendants have shown good cause for a protective order. 7 Plaintiff has propounded requests for sensitive information regarding Defendants’ 8 businesses, including their organizational and ownership structures and financial 9 records. ECF No. 37-5 at 3, 8. The Court credits Defendants’ argument that 10 dissemination of this information outside the litigation could result in competitive 11 harm. See ECF No. 38 at 8–9 (“Defendants are operating small businesses in a 12 highly competitive environment and must protect themselves from competitors who 13 may attempt to assume control of their customers and impact their financial 14 livelihoods.”). Moreover, the Court finds the risk has been established with the 15 requisite particularity. Defendants need not produce every document which may be 16 covered by the protective order to obtain reasonable protections against unnecessary 17 disclosure. 18 Plaintiff’s opposition to Defendants’ motion is directed primarily at what 19 Plaintiff perceives to be “obstructionist discovery behavior” including vague and 20 overbroad objections to Plaintiff’s discovery requests. See ECF No. 36 at 4. ORDER GRANTING MOTION FOR PROTECTIVE ORDER - 8 1 However, the proposed protective order would in no way obstruct Plaintiff’s access 2 to discoverable evidence. Rather, it will prohibit the inappropriate dissemination of 3 confidential material, and in that way facilitate, rather than hamper, the discovery 4 process.2 See ECF No. 38 at 1–3. Indeed, the Court agrees with Defendants that “[i]t 5 is not clear from Plaintiff’s Opposition why Plaintiff opposes the proposed 6 protective order” as “[t]here are no provisions cited that Plaintiff believes are unfair 7 or unduly restricting.” Id. at 2–3. The proper avenue to challenge Defendants’ 8 discovery requests is a motion to compel, which Plaintiff’s counsel repeatedly 9 threatened to file in his emails to defense counsel. See, e.g., ECF No. 34-1 at 3 10 (“[T]he time for [Defendant] to [“fix” its discovery responses] is quickly running 11 out because we are ready to file our motion to compel.”). Those arguments are not 12 well taken here and are insufficient to establish that a protective order is 13 unwarranted. 14 Having found good cause exists to enter a protective order, the Court also 15 finds the balance of the public and private interests tips in favor of a protective 16 order. Phillips, 307 F.3d at 1210–11. Though the public’s interest in open judicial 17 proceedings is strong, the evidence Defendants contend warrants protection will not 18 19 20 Plaintiff even concedes that the circumstances of this case warrant a protective order, albeit one “narrowly tailored” to cover only Plaintiff’s medical and financial records. See ECF No. 36 at 4 n.2. Plaintiff’s blatant attempt to have his cake and eat it too is not persuasive. 2 ORDER GRANTING MOTION FOR PROTECTIVE ORDER - 9 1 be of any particular interest to the public. Weighed against the harm that could result 2 from the improper disclosure of those documents, the Court finds a protective order 3 warranted.3 Id. 4 C. With limited exception, the protective order is reasonable 5 Having reviewed the provisions of Defendants’ proposed protective order, 6 the Court finds it reasonable and incorporates it by reference with one exception. A 7 party wishing to file material under seal must provide “compelling reasons 8 supported by specific factual findings” establishing that the need for confidentiality 9 of the information contained in the proposed sealed document outweighs the 10 public’s interest in disclosure. See Kamakana v. City & Cty. of Honolulu, 447 F.3d 11 1172, 1178 (9th Cir. 2006) (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 12 F.3d 1122, 1135 (9th Cir. 2003)). Read broadly, the proposed protective order 13 permits either party to file material designated confidential under seal without leave 14 of the Court. See ECF No. 33-1 at 11. That provision is unacceptable. Any party 15 wishing to file material under seal shall file an appropriate motion and set out a 16 sufficient justification overcoming the public’s interest in the transparency of the 17 judicial process. 18 19 20 Plaintiff’s request for an award of cost and fees incurred in briefing his opposition to Defendants’ motion, see ECF No. 36 at 10, is DENIED. As an initial matter, Federal Rule of Civil Procedure 37(a)(5) does not appear to allow for such an award in connection with a motion for a protective order. In any event, the Court obviously disagrees that Defendants’ motion was “not substantially justified.” 3 ORDER GRANTING MOTION FOR PROTECTIVE ORDER - 10 1 Accordingly, IT IS HEREBY ORDERED: 2 1. GRANTED. 3 4 Defendants’ Motion for a Protective Order, ECF No. 33, is 2. Defendants’ proposed protective order, ECF No. 33-1, is 5 APPROVED IN PART and INCORPORATED BY REFERENCE 6 IN PART as described above. 7 A. 8 9 10 11 12 13 Any party wishing to file material under seal shall file an appropriate motion to seal and set out a sufficient justification. IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and provide copies to all counsel. DATED this 21st day of February 2020. _________________________ SALVADOR MENDOZA, JR. United States District Judge 14 15 16 17 18 19 20 ORDER GRANTING MOTION FOR PROTECTIVE ORDER - 11
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
