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Childers v. General Motors LLC

United States District Court, E.D. Michigan, Southern Division

April 16, 2018



          Nancy G. Edmunds, United States District Judge.

         This matter comes before the Court on Plaintiff Denise Childers's Objections (Dkt. # 38) to the September 26, 2017 Magistrate Judge's Order (Dkt. # 35) Granting Defendant's Motion for Entry of a Protective Order (Dkt. # 22). Being fully advised in the premises, having read the pleadings, and for the reasons set forth below, the Court GRANTS Plaintiff's objections, REJECTS the Magistrate Judge's order, DENIES Defendant's Motion for Entry of a Protective Order, and VACATES the Protective Order entered by the Magistrate Judge.

         I. FACTS

         Plaintiff, Denise Childers ("Plaintiff"), an employee of Defendant General Motors LLC ("Defendant" or "GM"), filed her complaint on December 21, 2016, and an amended complaint on December 23, 2016, alleging that Defendant discriminated and retaliated against her on the basis of her race and age in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and that Defendant failed to make reasonable accommodations under the Americans with Disabilities Act, 42 U.S.C. § 12111 et seq.. (Pl. Compl.; Dkt. # 1, at 4).

         Discovery began on March 6, 2017. (Dkt. # 16). In response to Defendant's first request for production of documents, Plaintiff produced several documents ("Employment Access Documents") that she had acquired during her employment with Defendant. (Dkt. # 22, at 9; Pg ID 119). Plaintiff, a Senior Auditor in GM's Audit Services Division, conducts internal audits within GM to confirm compliance with company policies and regulatory requirements. In her position, Plaintiff, who is currently on a medical leave of absence which began on January 26, 2017, had access to a wide-range of GM documents, correspondence, and other property belonging to GM, some containing confidential and proprietary information, including financial data, audit procedures, and audit findings.

         The initial Employment Access Documents Plaintiff produced in discovery included: (1) Interim Communication memoranda concerning audits / projects, which GM states include confidential findings / recommendations; (2) audit-related communications (e.g., emails); and (3) a PowerPoint Presentation regarding a substantial internal audit.[1]Defendant believes that these documents contain confidential information and that discovery may reveal more such documents. (D. Mot. Protective Order, Dkt. # 22, at 9; Pg ID 119). Defendant attempted to negotiate with Plaintiff a stipulated protective order, but the parties could not come to an agreement. (Parties' Exchange on Protective Order, Dkt. # 41-2, at 1-19; Pg ID 640-58).

         On August 15, 2017, Defendant filed a motion for entry of a proposed protective order ("Proposed Protective Order"), pursuant to Fed.R.Civ.P. 26(c), to protect the information it believes to be confidential. (Dkt. # 22). Defendant's Proposed Protective Order allows the parties to designate documents, information, or tangible things, as confidential when a party determines, in good faith, that they contain personal, proprietary, or sensitive business information. (Dkt. # 22-2). Defendant's Proposed Protective Order includes a procedure and mechanism to allow either party to designate documents, or challenge the designation of documents, as confidential. The Proposed Protective Order does not restrict Plaintiff's use of the documents within the lawsuit, regardless of their confidential status.

         Defendant's Proposed Protective Order provides that "[a]ny documents or information produced pursuant to a discovery request or used as an exhibit to a deposition may be designated as confidential by [ ] either party whether such documents were produced prior to or after the entry of this Protective Order." (Dkt. # 22-2, ¶ 5). Defendant asserts this language is necessary to protect Defendant's confidential information already in Plaintiff's possession, or produced by Plaintiff in this matter, from unfettered dissemination, while still allowing Plaintiff to use the documents during the course of the lawsuit. In Defendant's reply brief, Defendant further clarified that Defendant does not seek to designate as confidential information documents that Plaintiff obtains through sources independent of Defendant or from the public record.

         Plaintiff responded that Defendant should not be allowed to designate information Plaintiff obtained "outside the discovery process" as confidential under Rule 26(c). Plaintiff asserted that Defendant's Proposed Protective Order would restrict her ability to disseminate information and improperly infringe upon her First Amendment rights. Plaintiff claimed that the Employment Access Documents that she obtained through her employment, and not through the discovery process, should not receive a designation of confidential, under the Proposed Protective Order, whether or not the documents contain proprietary or sensitive business information. Plaintiff also claimed that Defendant has not met its burden to demonstrate that "good cause" exists for entry of a protective order, and that Defendant specifically failed to explain how disclosure of this information would potentially harm Defendant if disclosed.

         On September 26, 2017, Magistrate Judge Anthony P. Patti issued an Order Granting Defendant's Motion for Entry of a Protective Order. (Dkt. # 35). He granted the motion pursuant to Fed.R.Civ.P. 26(c), which provides that for good cause shown, a court may issue an order "to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, " including requiring that "confidential research, development, or commercial information not be revealed or be revealed only in a specified way." Fed.R.Civ.P. 26(c)(1)(G); (Dkt. # 35).

         The Magistrate Judge found that the Proposed Protective Order properly sought to protect information produced during the discovery process. He explained, "[t]he fact that Plaintiff has these documents in her possession as a result of her employment with Defendant, as a Senior Auditor, does not relieve these documents of their confidential status." (Dkt. # 35, at 7; Pg ID 571). "Defendant identified those documents Plaintiff has produced, they. . . .includ[e] Defendant's financial data, internal audit procedures and internal audit findings, as well as those types of documents it asserts will contain Defendant's confidential proprietary information subject to the proposed Protective Order." (Dkt. # 35, at 6; Pg ID 570).

         The Magistrate Judge's order also included a plain error. He attributed to Plaintiff's counsel a statement that Defendant's counsel had made.[2] He believed, in error, that Plaintiff's counsel had conceded that the Employment Access Documents contained confidential information. The Magistrate Judge cited the incorrectly attributed statement twice, in two separate analysis portions of his order.

         On October 10, 2017, Plaintiff filed two timely objections to the Magistrate Judge's Order Granting Defendant's Motion for Entry of a Protective Order. (Dkt. # 38). Plaintiff's first objection corrects the attribution error. Plaintiff argues that the Magistrate Judge's conclusions relied on the belief that Plaintiff conceded that the documents contained confidential information. Plaintiff asserts that the Magistrate Judge's conclusions would have been different had he correctly understood that Plaintiff believes that the documents do not contain information Defendant has good cause to label confidential. In her second objection, Plaintiff argues that Rule 26(c) itself does not authorize the Court to control a party's use of information obtained outside of the discovery process, but is instead only a grant of power to impose conditions on discovery. Defendant filed a response (Dkt. # 41) and an amended response (Dkt. # 43) to Plaintiff's objections, and Plaintiff filed a reply (Dkt. # 42).

         II. ...

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