Mag. Judge Chapman Rejects "Confidentiality" Designation and Addresses "Undue Burden"
In Hill v. Eddie Bauer, Magistrate Judge Rosalyn M. Chapman (Spring Street Courthouse) required production of alleged "confidential and proprietary" information without a protective order where defendant failed to provide a proper showing that the information was, in fact, confidential.
Attorneys sometimes take for granted that a protective order will be "automatic" and that a wide net can be cast around information that the client asserts is "confidential." It is not unusual (in my experience) to refuse to produce documents until a protective order is in place--as happened here.
But Judge Chapman would not condone this approach. She required Eddie Bauer to prove the confidential information it sought to protect was, in fact, confidential and proprietary. Because no proof was offered for confidentiality, and no confidentiality order was pre-negotiated in advance of the discovery due date, no protective order was granted.
On a different subject, Judge Chapman provisionally accepted Eddie Bauer's argument (based on declarations and proof) that production of certain third party information should not occur because of "undue burden." She allowed, however, a limited sampling of the third-party information (with certain confidential information redacted) to determine if full production should be required.
This ruling is a good reminder for counsel to take nothing for granted in asserting confidentiality; to be prepared with proof and declarations as to why certain information is confidential and/or unduly burdensome; and to negotiate a protective order before the discovery due date, if possible.
Case Highlights:
1. In response to almost each and every request for production, defendants objected on, inter alia, the following grounds: "seeks confidential proprietary information prior to issuance of a protective order" ; "constitutes an unwarranted invasion of [third party''s] constitutional, statutory and common-law right of privacy in confidentiality.
2. Defendant admits withholding documents from plaintiff based upon its claim of confidential proprietary information and has refused to turn over these documents without a protective order.
3. Here, defendant has failed to provide any declarations or other evidence to support its claim that the documents requested are confidential information and that their "disclosure would be harmful to the party's interest in the property."
4. Moreover, if defendant truly believes it has "confidential proprietary information" it should have entered into a stipulated protective order with plaintiff or filed a motion for protective order before the date by which it was to respond to the requests.
5. In addition, defendant also object to nearly all production requests as: "overly broad, unduly burdensome, and seeks information not reasonably calculated to lead to the discovery of admissible evidence."
6. Although defendant has made a general or boilerplate relevancy objection to plaintiff's document request, defendant has not provided any explanation at all why these requests are not relevant.
7. In light of the declarations submitted by defendant which establish that much of the information plaintiff seeks is available in electronic format, it appears to the Court that counsel for the parties, and particularly plaintiff, must address electronic discovery.
Plaintiffs in this case were represented by Initiative Legal Group (Century City); defendants were represented by Akin Gump (Los Angeles office).
Discussion:
In addition to the discussion about confidential information, this case also highlights the risk of relying on "boilerplate" objections. We all use boilerplate objections, often without much thought or analysis.
This case reminds that even boilerplate objections need to be defensible, and should be more carefully analyzed at the time discovery is answered.
The question of "undue burden" is also highlighted in this case. Defendants' declarations asserted that response to certain of the plaintiff's requests would consume 3,900 hours of work--the equivalent of two full work years. Based on this Judge Chapman found an undue burden. However, defendant had offered to provide sampling of this data; an offer that plaintiff refused.
Judge Chapman ruled that because the information was largely in electronic format, sampling was an appropriate interim step.
Not discussed in the opinion, however, was the apparent fact that the estimate of 3,900 hours of work for full production was based on manual printing and review of documents--a questionable approach to review of information contained in electronic format.
It is a good idea for requesting parties to probe the underling assumptions of "undue burden" raised in response to a document request. Make sure that declarations asserting the burden of review are based on electronic review procedures, not manual review procedures.
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