United States District Court, E.D. Michigan, Southern Division
ORDER REJECTING MAGISTRATE JUDGE'S ORDER 
GRANTING DEFENDANT'S MOTION FOR ENTRY OF PROTECTIVE ORDER
G. Edmunds, United States District Judge.
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.
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).
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
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.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).
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
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.
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.
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).
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).
Magistrate Judge's order also included a plain error. He
attributed to Plaintiff's counsel a statement that
Defendant's counsel had made. 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.
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).