United States District Court, E.D. Michigan, Southern Division
FCA U.S. LLC, Plaintiff,
PATREA BULLOCK, Defendant.
OPINION & ORDER DENYING PLAINTIFF'S MOTION TO
SUBMIT SUPPLEMENTAL BRIEF AND DOCUMENTS FOR AN IN CAMERA
REVIEW (Dkt. 27)
A. GOLDSMITH United States District Judge.
matter is before the Court on Plaintiff FCA U.S. LLC's
(“FCA”) motion to submit supplemental brief and
documents for an in camera review (Dkt. 27). FCA previously
filed a motion for a temporary restraining order (Dkt. 2),
and at a hearing on the motion, counsel for FCA indicated
that it would like to submit additional materials in support
of its motion. The Court permitted FCA to do so. See
1/5/2018 Order Regarding Additional Filings (Dkt. 25). FCA
now seeks to submit those additional materials in camera so
that they are not disclosed to Defendant Patrea Bullock. For
the reasons that follow, the Court denies FCA's motion.
Patrea Bullock is an attorney who previously worked for two
law firms in California, Universal & Shannon, LLP
(“U&S”) and Gates, O'Deherty, Gonter & Guy
LLP (“GOGG”). Compl. ¶¶ 8, 20 (Dkt. 1).
Plaintiff FCA was a client of both U&S and GOGG, and during
Bullock's time working for these law firms, she worked on
dozens of breach of warranty cases for FCA. Id.
¶¶ 9, 21. In April 2017, Bullock signed a
confidentiality agreement regarding certain client
confidential information learned about FCA. Id.
¶ 19; see also Confidentiality Agreement, Ex.
1-A to Compl. (Dkt. 1-2).
stopped working for GOGG in October 2017 and opened her own
practice. Compl. ¶ 30. On November 20, 2017, Bullock
served FCA with a breach of warranty case in California,
Brown v. FCA U.S. LLC, No. 34-2017-00222086 (Super.
Ct. of Cal., Sacramento), where Bullock was listed as the
plaintiff's counsel of record. Id. ¶ 31.
FCA then filed the instant complaint, alleging claims for
breach of contract, misappropriation of trade secrets,
violation of federal trade secret laws, breach of fiduciary
duty, and injunctive relief.
simultaneously filed a motion for a temporary restraining
order, requesting that the Court enjoin Bullock from filing
breach of warranty lawsuits against FCA and divulging any of
FCA's confidential or proprietary information, among
other requests. Pl. Mot. for TRO at 15-16 (Dkt. 2). At a
hearing on the motion, counsel for FCA indicated that FCA
would like to file a supplemental brief with additional
confidential information in support of its motion. The Court
subsequently entered a stipulated protective order (Dkt. 26).
FCA then filed the instant motion requesting that the Court
permit it to submit its supplemental brief and documents for
an in camera review.
argues that it should be permitted to provide certain
information to the Court for an in camera review, so that the
public and “FCA US's competitors” (which it
describes as “Plaintiffs firms such as Bullock's
firm”) cannot learn its strategies for defending breach
of warranty cases. Def. Mot. at 8 (Dkt. 27). FCA argues that
the materials it would submit are “confidential,
privileged and work-product documents” and should be
disclosed neither to Bullock nor to the public. Id.
Sixth Circuit has recognized that “the attorney-client
privilege cannot at once be used as a shield and a
sword.” Ross v. City of Memphis, 423 F.3d 596,
604 (6th Cir. 2005). This means that a party may not
“mak[e] the content of communications a factual basis
of a claim” and then use the attorney-client privilege
“as a shield to prevent . . . testing of the
claim[.]” Id. at 604 n. 5. But that is
precisely what FCA seeks to do here - it wants to rely on
these documents to support its motion for a TRO, and
simultaneously shield them from any critique by Bullock by
claiming privilege or work-product protection. This would
result in extreme unfairness to Bullock, because - if it
granted FCA's motion for a TRO - the Court would be
prohibiting Bullock from representing clients based on
evidence from FCA that she cannot even challenge or attempt
authorities that FCA relies upon do not support its position.
Several of the cases simply stand for the proposition that a
court has authority to seal certain documents and prevent
them from being viewed by the public. See, e.g.,
Carter v. Welles-Bowen Realty, Inc., 628 F.3d 790,
790-791 (6th Cir. 2010) (noting that briefs that contain
confidential information may be filed under seal); In re
Knoxville News-Sentinel Co., Inc., 723 F.2d 470, 474
(6th Cir. 1983) (describing limits on the public's right
of access to judicial records). This Court has already
provided FCA such protection by entering a protective order.
FCA also cites United States v. Straughter, 950 F.2d
1223 (6th Cir. 1991), in which the district court conducted
an in camera review of documents, but that criminal case
concerned the identity of a confidential informant, whose
life would be significantly endangered if his or her identity
were revealed. The instant case does not present those same
FCA cites cases in which the court considered a motion to
disqualify an attorney from litigation based on the
“substantial relationship” between the
attorney's former representation and the current matter
where he would be adverse to the former client. See U.S.
Football League v. Nat'l Football League,
605 F.Supp. 1448 (S.D.N.Y. 1985); T.C. Theatre Corp. v.
Warner Bros. Pictures, 113 F.Supp. 265 (S.D.N.Y.
1953). Both cases note that courts do not
typically require the disclosure of client secrets from the
first representation to establish whether the matters are
“substantially related”; rather the law presumes
secrets were shared in the former representation without such
proof. U.S. Football League, 605 F.Supp. at 1461;
T.C. Theatre, 113 F.Supp. at 268-269. But the issue
here is not whether FCA must make such disclosures to the
Court to establish its case; the issue here is whether FCA is
free to make such disclosures only to the Court and
bar its former lawyer and current litigation opponent from
viewing such evidence. FCA's cases do not address the
unfairness of barring a lawyer from representing clients with
no knowledge of evidence that her opposing party thinks is
significant to the Court's decision.
a protective order has been entered in this case, FCA
expresses its concern that Bullock would be allowed access to
any documents filed under seal, because her “prior
actions establish she cannot be trusted to uphold her ethical
obligations[.]” Def. Mot. at 4. But this Court has not
yet made any determination regarding whether Bullock has
violated her ethical obligations, and Bullock is well aware
that the protective order prohibits her from using any
information designated as confidential “for any purpose
whatsoever other than to prepare for and to conduct discovery
and trial in this action, including any appeal
thereof.” 1/9/2018 Stipulated Protective Order at 6
(Dkt. 26). The Court, therefore, finds no reason to believe
that the protections offered by the stipulated protective
order are insufficient. If FCA disagrees, it is free to rest
on the record thus far and refrain from submitting additional
reasons provided, Plaintiff FCA's motion to submit its
supplemental brief and documents for an in camera review
(Dkt. 27) is denied. On or before February 13, 2018, FCA
shall either file a supplemental brief containing the
documents it would like the Court to consider with respect to
its motion for a TRO, or otherwise inform ...