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Biazari v. DB Industries, LLC

United States District Court, W.D. Virginia, Harrisonburg Division

April 26, 2017

POUNEH BIAZARI, Administrator of the Estate of Payman Biazarikari, Deceased, Plaintiff,
DB INDUSTRIES, LLC, d/b/a Capital Safety USA, Defendant.


          Joel C. Hoppe, United States Magistrate Judge

         This matter is before the Court on Defendant DB Industries, LLC's Motion for Protective Order, ECF No. 21 (“Def. Mot. & Br.”). The parties agree that entry of a protective order is appropriate, and they also agree as to most of the terms for a protective order. See Id. at 4-5. They disagree, however, as to two key provisions: (1) whether the protective order should define in advance the categories of information that may be designated as confidential or proprietary or as a trade secret (and therefore protected from disclosure to unauthorized persons), and if such a provision is included, the scope of information that would fall within that designation; and (2) whether the protective order should allow Plaintiff to share such confidential information with similarly situated plaintiffs in other pending civil actions. See Id. at 4-6; see also Pl. Br. 3-4, ECF No. 22.

         I. Background

         In this products liability action, Plaintiff Pouneh Biazari, in her capacity as Administrator of the Estate of Payman Biazarikari (“Decedent”), contends that Defendant manufactured and sold a defective fall prevention device, the LAD-SAF Cable Sleeve (“LAD-SAF sleeve”). Pl. Br. 1-2. Decedent was wearing the LAD-SAF sleeve while working on a cellular tower. Id. at 2. Plaintiff alleges that although Decedent used the device in an appropriate manner, it failed to arrest his fall from the tower. Id. Decedent sustained severe injuries from the fall and subsequently died. Id. Defendant has since recalled the “X1” model of the LAD-SAF sleeve (the model Decedent was wearing at the time of his injury) from the market, although the newer “X2” and “X3” models are still in use. Id.

         In addition to this action, other suits have been filed in the federal courts against Defendant and its parent, 3M Company, on behalf of individuals who were killed or injured after the LAD-SAF sleeve allegedly failed to prevent their falls. See Flack v. DB Indus., No. 3:11-cv-00088-JAJ-TJS (S.D. Iowa);[1] Braman v. DB Indus., Inc., No. 2:16-CV-13897-VAR-MKM (E.D. Mich.); McDonald v. DB Indus., LLC, No. 4:16-cv-03037-BYP (N.D. Ohio); Isham v. 3M Co., No. 5:16-cv-0881-HE (W.D. Okla.); Scott v. 3M Co., No. 4:16-cv-02775 (S.D. Tex.) (collectively, “collateral LAD-SAF cases”).[2] Plaintiff seeks to share confidential information obtained during discovery in this matter with counsel for the plaintiffs in those cases so as to reduce the costs of cumulative discovery and allow for her and the other plaintiffs to collaborate with one another in formulating their litigation strategies.

         II. Discussion

         A court may issue an order to protect a party from “annoyance, embarrassment, oppression, or undue burden or expense, including . . . (G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way.” Fed.R.Civ.P. 26(c)(1). The party seeking a protective order bears the burden of showing good cause for it. In re Deutsche Bank Tr. Co. Ams., 605 F.3d 1373, 1378 (Fed. Cir. 2010). The proponent must show that the information is confidential and that its disclosure would create a risk of harm to the party's interests. In re Violation of Rule 28(D), 635 F.3d 1352, 1357-58 (Fed Cir. 2011). If a court finds that such a risk exists, it must balance the risk against the potential harm to the opposing party's case from the restrictions placed on the information. Deutsche Bank, 605 F.3d at 1380; accord Pfizer Inc. v. Apotex Inc., 744 F.Supp.2d 758, 762 (N.D. Ill. 2010).

         A. Definition and Scope of Confidential Information

         Defendant identifies some broad categories of discoverable information that should be protected from unauthorized disclosure, including information pertaining to the LAD-SAF sleeve's design, testing, and development, as well as Defendant's investigations of any complaints about the product.[3] It contends that within these broad categories it should retain discretion to decide, on a case-by-case basis, which documents are to be considered confidential. Def. Mot. & Br. 5-6, 12-13. If Plaintiff objects to such a designation, the parties would confer to determine whether confidential treatment is merited and, if necessary, bring their dispute before the Court for resolution. Id. at 12-13.

         Plaintiff, for the most part, [4] agrees that information falling within these categories would be proprietary and therefore protected from disclosure. Rather than leaving Defendant to make confidentiality determinations on a document-by-document basis, however, Plaintiff seeks to include language in the protective order that would limit confidential protection to the following specific classes of documents:

a. All design drawings and specification[s] pertinent to the design at issue in this case.
b. All developmental, prototype, mechanical, and production (certification) test reports, photographs and films pertinent to the LadSaf sleeve.
c. All internal minutes of meetings, memoranda of engineers and budgetary information pertinent to the consideration of the components at issue in this case, alternative designs considered but not chosen, and information regarding the ...

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