[Cite as Byrd v. U.S. Xpress, Inc., 2014-Ohio-5733.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
DARRELL BYRD, Individually and as : APPEAL NO. C-140260 Personal Representative of the Estate TRIAL NO. A-1308010 of Zachary A. Byrd, : O P I N I O N. EMILY HARRISON, Individually and : as Guardian of JAMES HARRISON, IV, :
and :
JAMES HARRISON, IV, Individually : and through Guardian EMILY HARRISON, :
Plaintiffs-Appellees, :
vs. :
U.S. XPRESS, INC., :
Defendant-Appellant, :
JASON WOODYARD, :
Defendant. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Vacated and Cause Remanded
Date of Judgment Entry on Appeal: December 26, 2014 OHIO FIRST DISTRICT COURT OF APPEALS
The Sanders Law Firm, PSC, Robert E. Sanders, Justin A. Sanders and Delana S. Sanders, for Plaintiffs-Appellees,
Dickie, McCamey & Chilcote, P.C., Joseph J. Golian and Mary McWilliams Dengler, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
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D E W INE , Judge.
{¶1} This is an interlocutory appeal from the entry of a protective order. At
issue are the “sharing provisions” of the order; that is, provisions of the order which
allow counsel to share confidential and trade-secret materials produced in discovery
with attorneys and experts involved in other lawsuits and potential lawsuits.
{¶2} The propriety of such sharing protective orders has been an issue
frequently considered by courts across the country in recent years. In some
circumstances, sharing provisions have been upheld by courts; in other circumstances,
they have not. Here, we find that the trial court’s decision to enter the sharing protective
order to be an abuse of its discretion. We reach this conclusion because we find the
particular sharing provisions at issue here to be extraordinarily broad and to lack the
protections employed in other cases. Specifically, we find the order objectionable
because it allows the sharing of trade secrets and other confidential information, but
requires no showing that the other litigation is in any way related, similar or connected
to the present litigation, because it allows counsel virtually unfettered discretion to
determine with whom confidential information is shared without court oversight, and
because it lacks other protections designed to protect the misuse of the disclosed
materials.
I. Background
{¶3} The underlying lawsuit is an action for negligence and wrongful death
filed against a trucking company and its driver. On September 13, 2013, Jason
Woodyard crashed a semi owned by U.S. Xpress, Inc., (“USX”) into the rear of a car
that was stopped on I-75. One occupant of the car, Zachary Byrd, was killed in the
crash; the other occupant, James Harrison, was severely injured. Zachary’s father,
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Darrell Byrd, sued on behalf of Zachary’s estate. Mr. Harrison sued on his own
behalf, and his wife, Emily, sued on her own behalf and as James’s guardian.
{¶4} In February 2014, the plaintiffs served USX with numerous discovery
requests including 40 interrogatories, 115 document requests, and 36 requests for
admissions. Prior to responding, USX sought to negotiate a stipulated protective
order with the plaintiffs whereby the plaintiffs would agree to not disclose
documents that USX claimed constituted trade secrets or confidential information.
After it was unable to reach an agreement with the plaintiffs, USX filed a motion
asking the court to enter a protective order. In an affidavit attached to the motion,
the litigation director of USX’s risk management department stated that 16 of the
plaintiffs’ document requests “encompass proprietary and commercial information,
including documents with financial, marketing, research, and customer information
relating to [USX’s] business from which [USX] derives an economic value.” USX
also attached a proposed protective order that would prohibit dissemination of its
confidential documents outside of the litigation.
{¶5} The plaintiffs opposed USX’s motion and proposed order. They
argued that USX had not established good cause for a protective order because it
failed to show that any of its documents were in fact confidential. Alternatively, the
plaintiffs submitted a proposed sharing protective order that would permit them to
share USX’s confidential information with other attorneys preparing or prosecuting
personal injury claims against USX.
{¶6} The court heard argument on the parties’ motions. A few days after
the hearing, the court signed and entered the sharing protective order proposed by
the plaintiffs.
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{¶7} Under the sharing protective order, USX may designate as
“Confidential” documents containing “trade secret or other confidential research,
development, or commercial information.” If the plaintiffs contest the designation of
any documents as confidential, USX bears the burden to file a written motion and to
convince the court that the confidential designation is appropriate. The plaintiffs’
attorneys may disseminate confidential materials to: (1) the plaintiffs; (2) the
attorneys’ support staff; (3) experts retained by the plaintiffs’ attorneys “to assist in
the investigation, preparation, prosecution, or evaluation of this litigation and/or any
other litigation in which claims of personal injury are alleged against” USX; (4)
potential deponents and witnesses “in this litigation and/or any other litigation in
which claims of personal injury are alleged against” USX; (5) court officials; (6)
persons authorized by the court to receive confidential documents; and (7) “[o]ther
plaintiff’s attorneys and experts * * * involved in the investigation, preparation,
prosecution, or evaluation of any personal injury claims against” USX. (Emphasis
added.)
{¶8} Recipients of confidential documents must sign nondisclosure
agreements binding them to the terms of the order. The nondisclosure agreements
prohibit recipients from disclosing USX’s confidential information to the public,
media, or USX’s competitors. The plaintiffs’ attorneys must maintain a list of all
recipients of confidential documents. But no one, including USX, may examine the
list without permission from the plaintiffs or a “written order of the Court issued
after a hearing and for good cause.”
{¶9} At the end of the case, the plaintiffs’ attorneys and other confidential-
document recipients may keep USX’s confidential materials. And the plaintiffs’
attorneys may use the confidential documents “in the investigation, preparation,
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prosecution or evaluation of any other claim(s) alleging personal injury against”
USX.
II. Do we have jurisdiction?
{¶10} We must first determine whether we have jurisdiction over this
appeal. An appellate court’s jurisdiction is limited to the review of final judgments of
lower courts. Ohio Constitution, Article IV, Section 3(B)(2). To invoke our
jurisdiction, a court’s order must meet the finality requirements of R.C. 2505.02.
Under R.C. 2505.02(B)(4), a final order is one that
grants or denies a provisional remedy and to which both of the
following apply: (a) The order in effect determines the action with
respect to the provisional remedy and prevents a judgment in the
action in favor of the appealing party with respect to the provisional
remedy[; and] (b) The appealing party would not be afforded a
meaningful or effective remedy by an appeal following final judgment
as to all proceedings, issues, claims, and parties in the action.
{¶11} The statue defines “provisional remedy” to include a proceeding for
“discovery of privileged matter.” R.C. 2505.02(A)(3). Noting the similarity of trade-
secret information to privileged information courts have held that proceedings that
result in the discovery of trade-secret information also constitute provisional
remedies. See Armstrong v. Marusic, 11th Dist. Lake No. 2001-L-232, 2004-Ohio-
2594, ¶ 12.
{¶12} The plaintiffs argue that the court’s order does not deny a provisional
remedy because USX has not established that any of the requested documents
contain confidential trade secrets. Courts, however, have not required parties to
conclusively prove the existence of a trade secret or privileged matter as a
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precondition to appellate review under 2505.02(B)(4). To impose such a
requirement would force an appellate court “to decide the merits of an appeal in
order to decide whether it has the power to hear and decide the merits of an appeal.”
Bennett v. Martin, 186 Ohio App.3d 412, 2009-Ohio-6195, 928 N.E.2d 763, ¶ 35
(10th Dist.). Rather, “to avoid this conundrum,” a party need only make a “colorable
claim” that documents subject to discovery are privileged or confidential for an order
to qualify as a provisional remedy. Id. The documents at issue here include training
materials, financial information, and customer shipping records. We doubt whether
all of the information for which USX seeks protection will ultimately qualify as a
trade secret or confidential information entitled to protection. But we think there is
at least a colorable claim that some of the information constitutes a trade secret so as
to qualify the order as a provisional remedy. See Callahan v. Akron Gen. Med. Ctr.,
9th Dist. Summit No. 22387, 2005-Ohio-5103, ¶ 29.
{¶13} We also must consider whether the court’s order “determines the
action” with respect to the provisional remedy. In response to the plaintiffs’
discovery requests, USX moved for a protective order to limit the disclosure of what
it claimed was confidential or trade-secret information. The plaintiffs opposed
USX’s protective order and argued that no protective order was necessary, or in the
alternative, that the court should enter the sharing protective order that they
proposed. The court entered the plaintiffs’ proposed order. The effect of that
decision is that the claimed confidential/trade-secret information will be produced,
and plaintiffs may share the information with attorneys in other lawsuits.
{¶14} We believe that the court’s order which granted plaintiffs’ proposed
protective order and effectively denied USX’s proposed order determines the action
with respect to the provisional remedy. See N.E. Professional Home Care v.
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Advantage Home Health Servs., Inc., 188 Ohio App.3d 704, 2010-Ohio-1640, 936
N.E.2d 964, ¶ 41 (5th Dist.); Ramun v. Ramun, 7th Dist. Mahoning No. 08 MA 185,
2009-Ohio-6405, ¶ 26-27. But see Peppeard v. Summit Cty., 9th Dist. Summit No.
25057, 2010-Ohio-2862, ¶ 12. As explained by the dissent in the Peppeard case, to
hold otherwise would put the party seeking to avoid discovery in an untenable
position. Id. at ¶ 21. To obtain a final order, the party would have to ignore the trial
court’s decision and continue to refuse discovery until the other side filed a motion to
compel. Id. The “frustrated” trial court, having already decided the substantive
issue, would undoubtedly grant the motion and only then could the party appeal. Id.
Such an unnecessary and redundant requirement, however, could possibly subject
the objecting party to sanctions under Civ.R. 37 for refusing to provide discovery
after the trial court’s denial of the motion to compel. Id. We find it unnecessary to
impose such a burden. Because the effect of the order is that confidential documents
will be produced and shared, the order has determined the action with respect to the
provisional remedy
{¶15} Finally, we must consider whether USX would be able to obtain
meaningful relief following the entry of final judgment. The harm USX seeks to
avoid is the sharing of confidential/trade-secret information with attorneys involved
in other lawsuits. Because it is the sharing of the information which USX seeks to
prevent, there is no effective relief that may be provided after final judgment.
Armstrong, 11th Dist. Lake No. 2001-2-232, 2004-Ohio-2594, at ¶ 12.
{¶16} Jurisdiction is proper in this court because USX has shown that the
protective order will result in the disclosure of information that colorably constitutes
trade secrets, because the protective order determines the action with respect to the
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sharing of trade secrets, and because meaningful relief will not be available on appeal
from final judgment.
II. On to the merits
{¶17} We now turn to the merits of the appeal. In a single assignment of
error, USX contends that the trial court abused its discretion by adopting the sharing
provisions of the protective order. USX argues that the provisions are unreasonable
in scope and fail to adequately safeguard its trade secrets. We agree.
A. Hardly a novel issue
{¶18} The issue presented in this case is not new. The question of when
information produced in one lawsuit may be shared with participants in another
lawsuit is one that has been dealt with in legions of cases across the country. See,
e.g., Gil v. Ford Motor Co., N.D.W.Va. No. 1:06CV122, 2007 U.S. Dist. LEXIS 65269
(Sept. 4, 2007); Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122 (9th
Cir.2003); Stokes v. Life Ins. Co. of N. Am., D.Idaho No. CIV 06-00411-S-LMB, 2009
U.S. Dist. LEXIS 131394 (Aug. 31, 2009).
{¶19} The decision as to whether “sharing” should be allowed is a discovery
matter that is vested to the sound discretion of the trial court. See Mauzy v. Kelly
Servs., 75 Ohio St.3d 578, 592, 664 N.E.2d 1272 (1996). As a result, the legal
databases are replete with cases where sharing has been allowed, and also with cases
where it has not been allowed. See, e.g., Miller v. Gen. Motors Corp., 192 F.R.D. 230
(E.D.Tenn.2000) (plaintiffs’ motion for a sharing protective order granted); Darby v.
Safeco Ins. Co. of Am., D.Ariz. No. CV-12-00287-PHX-PGR, 2012 U.S. Dist. LEXIS
162610 (Nov. 14, 2012) (plaintiff entitled only to “non-sharing” protective order).
{¶20} Because of the broad discretion granted to trial courts in the
regulation of discovery, trial court decisions allowing or not allowing sharing are not
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often overturned on appeal in the ordinary course. But we find it necessary that we
do so here.
{¶21} We find it necessary because our review of the rationale for sharing
protective orders and of other cases considering the issue convinces us that the
sharing provisions here are extraordinarily broad and lack the procedural
protections employed by other courts. We believe that under the facts of this case,
the court did abuse its discretion in entering the particular sharing protective order
that it entered.
B. The interests at stake: protection of confidential information, litigation efficiency and the public interest
{¶22} We start with the premise that absent a protective order, parties to a
lawsuit may generally disseminate discovered materials as they wish. See, e.g.,
Jepson Inc. v. Makita Elec. Works, Ltd., 30 F.3d 854, 858 (7th Cir.1994). But the
situation is more complicated when trade secrets or other confidential information is
involved. Ohio has adopted the Uniform Trade Secrets Act, providing legal
protections for trade secrets and preventing the disclosure of trade-secret
information that was improperly obtained. And the rules of discovery authorize a
court to issue a protective order “that a trade secret or other confidential research,
development, or commercial information not be disclosed or be disclosed only in a
designated way.” Civ.R. 26(C)(7).
{¶23} Thus, the rules don’t prohibit the disclosure or sharing of even trade-
secret information. But they do suggest that consideration should be given as to
appropriate means to protect legitimate confidentiality concerns.
{¶24} Sharing requests invoke several important interests. First, of course,
is the producing party’s desire to keep its confidential information secret. And at
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least, when trade secrets and other confidential information are involved, this is an
interest which must not be lightly disregarded. Presumably, disclosure to collateral
litigants increases the risk of harm from the disclosure of confidential information.
The more entities that have access to the information, the greater the risk of harm.
And as Professor Arthur Miller has pointed out, on a system-wide level, the care with
which courts guard confidential information will impact the willingness of parties to
lawsuits to produce information. See Miller, Confidentiality, Protective Orders, and
Public Access to the Courts, 105 Harv.L.Rev. 427, 477 (1991).
{¶25} On the other hand, sharing of discovery may reduce litigation costs
and, in some cases, promote the public interest. It may make little sense to force
litigants in different lawsuits to “reinvent the wheel” with their discovery efforts. Id.
at 497. Sharing reduces the “wasteful” and “unnecessary” duplication of discovery.
Jepson, 30 F.3d at 861. Further, sharing may promote public health and safety as, for
example, when attorneys share information about a harmful product or commercial
practice.
{¶26} Although we have never had occasion before this to weigh in on the
propriety of a sharing protective order, the issue of discovery sharing is not new to
this court. There are two ways that the sharing issue comes up. The first is in a case
such as this one where an attorney seeks to share the fruits of discovery with other
attorneys. The other is when a protective order is already in place, and a third-party
attorney seeks to intervene and modify the protective order so as to gain access to
what has already been produced. Both scenarios present similar considerations.
And while this case is our first attempt to deal with the first scenario, we previously
dealt with the second scenario in Adams v. Metallica, Inc., 143 Ohio App.3d 482,
492, 758 N.E.2d 286 (1st Dist.2001).
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{¶27} In Adams, we held that when a collateral litigant seeks to modify a
protective order, the trial court should employ a balancing test that considers all
relevant factors, including: “the nature of the protective order, the parties’ reliance
on it, the ability to gain access to the information in other ways, the need to avoid
repetitive discovery, the nature of the material for which protection is sought, the
need for continued secrecy, and the public interest involved.” Id., citing State v.
Philip Morris, Inc., 606 N.W.2d 676, 688 (Minn.App.2000). We also held that an
important consideration in whether a collateral litigant should be allowed to modify
a protective order is “the degree of similarity between the two suits used to justify the
claim of repetitious or overlapping discovery, as well as the merits of the second suit
when weighed against the privacy interests underlying the protective order.” Adams
at 492-93. We believe that many of the factors we found important in Adams—the
similarity of the lawsuits, privacy interests at stake, and the public interest—apply
with equal forcing to sharing protective orders.
{¶28} Bearing in mind the general interests supporting sharing protective
orders and our holding in Adams, we turn to the sharing protective order entered in
this case. In particular, we find it problematic for two reasons. First, it is not limited
to sharing in cases where there is an obvious benefit in terms of efficiency or
protecting public safety. Second, it lacks procedural protections commonly
employed in other cases to limit the risk of improper disclosure.
C. This protective order is extraordinarily broad in allowing sharing with attorneys in unrelated litigation.
{¶29} The primary rationale set forth in favor of allowing sharing is to
increase litigation efficiency by allowing the sharing of information between
participants in lawsuits involving the same facts and avoiding costly and time-
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consuming discovery. See Miller, 105 Harv.L.Rev. at 497-499. Considering this
justification, the protective order here is troubling in that it doesn’t require that
other attorneys accessing information have claims that are in any way related or
similar to those at bar. Rather than being limited to similar litigation, the order
allows sharing with any attorneys or experts “involved in the investigation,
preparation, prosecution, or evaluation of any personal injury claims against” USX.
In other words, the litigation need not be legally or factually similar and there need
not even be litigation—investigating or preparing for litigation is sufficient.
{¶30} When, as it did in Adams, sharing comes up in the context of an
attempt to modify a protective order, the court’s inquiry is in many ways easier than
it is in a case like this one where a party asks for sharing to be preemptively built into
a protective order. In the modification context, a court is able to assess whether the
efficiency gains are worth the risks of disclosure because it can evaluate the extent to
which sharing with a particular litigant will avoid duplicative discovery and also the
risks of competitive harm from disclosure. Such an inquiry is much more difficult
when the court doesn’t know the parties with whom the information will be shared.
{¶31} As a result, many of the courts that have authorized sharing protective
orders have required terms that ensure that sharing will be limited to situations
where there is a similarity between the lawsuits. See, e.g., McDaniel v. Freightliner
Corp., S.D.N.Y. No. 99 Civ. 4292, 2000 U.S. Dist. LEXIS 3497, *31 (Mar. 23, 2000);
see also Gunson v. BMO Harris Bank, N.A., 300 F.R.D. 581, 584 (S.D.Fla.2014).
This is part of the reason why so many sharing cases arise in the mass-tort or
products-liability context. See, e.g., Cipollone v. Liggett Group, Inc., 822 F.2d 335
(3d Cir.1987) (permitting sharing among litigants in “tobacco” tort cases). And
courts frequently reject sharing provisions where the requesting party cannot
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specifically identify any collateral proceedings. See, e.g., Menendez v. Wal-Mart
Stores E. LP, N.D.Ind. No. 1:10-cv-53, 2012 U.S. Dist. LEXIS 4143, *11 (Jan. 11,
2012).
{¶32} In our case, however, there is nothing in the order that requires any
similarity with the other litigants. The only similarity necessary is that USX be the
defendant and that the claim alleges personal injury.
{¶33} Perhaps even more troubling is that the order permits sharing with
people who are not even involved in a lawsuit against USX. So long as an attorney is
investigating, preparing, or evaluating a personal-injury claim against USX, he or she
may access USX’s trade secrets. The actual merits of the potential case or relevance
of USX’s trade secrets is not considered.
{¶34} Nor is there anything to suggest that particular public-safety concerns
make this a case where sharing is especially appropriate. In a large-scale products-
liability case, wide dissemination of otherwise protected materials—such as
manufacturing processes or product designs—can ultimately lead to increased
consumer safety. See Koval v. Gen. Motors Corp., 62 Ohio Misc.2d 694, 699, 610
N.E.2d 1199 (C.P.1990). But while the injuries are horrific in this case, the facts are
straightforward. It is a case about an automobile accident.
D. A lack of judicial oversight and the potential for abuse
{¶35} A related problem is the lack of oversight over the sharing process.
The sharing protective order gives the plaintiffs the sole discretion to determine with
whom they share information. It requires only that the plaintiffs maintain the list of
individuals with whom they have shared information, and for USX to even find out
who has its confidential information, it must obtain a court order.
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{¶36} But by leaving it up to the plaintiffs to decide with whom to share
confidential information and not giving defendants a prior opportunity to object, the
traditional protections for producing parties in the discovery process are eviscerated.
Discovery is undoubtedly an intrusive process, and those subject to discovery are
often forced to turn over a wide variety of information that they would prefer to keep
private.
{¶37} In the ordinary course, however, there are protections in the
discovery process that are not present here. First, before discovery is initiated, there
generally needs to be a lawsuit. A defendant who believes that a claim has been
frivolously brought may ask the court to hold off on discovery until it has ruled on a
motion to dismiss. Discovery may be resisted, because it is so far afield that it is not
likely to lead to the discovery of relevant information. Moreover, a defendant who
believes that his or her information is sought for an improper purpose may resist
discovery or seek particularized protections before disclosing information. See
Bertetto v. Eon Labs, Inc., D.N.M. No. 06-1136, 2008 U.S. Dist. LEXIS 119233, *8
(May 29, 2008).
{¶38} Here, however, USX has no way of knowing who is getting such
information. As a result, it has no advance opportunity to resist disclosure of
information to other litigants or even potential litigants. Suppose a USX truck was
involved in an accident with a truck owned by one of its competitors, injuring the
driver of the competitor’s truck. Under the terms of the order, the plaintiffs could
share USX’s confidential information with attorneys for the competitor trucking
company as long as they were investigating a personal-injury claim against USX.
{¶39} Not surprisingly, provisions like the one here have been met with
skepticism. For example, the United States District Court for Kansas recently
15 OHIO FIRST DISTRICT COURT OF APPEALS
rejected a sharing protective order that gave the plaintiffs’ counsel “sole discretion to
decide which attorneys met the criteria for disclosure” and did “not require any
advance notice be given to [d]efendants of those being provided confidential
information, or any opportunity for [d]efendants to object in advance of disclosure.”
McKellips v. Kumho Tire Co., Inc., D.Kan. No. 13-cv-2393-JTM-TJJ, 2014 U.S. Dist.
LEXIS 97086, *5 (July 17, 2014). Rather than allowing such “preemptive sharing
provision,” the court concluded that sharing should be determined on “an as-needed
or case-by-case basis during the course of the litigation.” Id. at *6. Similarly, in Wal-
Mart Stores E., L.P. v. Endicott, 81 So.3d 486, 490 (Fla.App.2011), the court
explained that prior to entering a sharing protective order, a court should balance the
needs of the collateral litigants with the need to protect confidential documents. In
refusing to allow sharing, the court explained that such a balancing could not take
place where the court did not know the identity of the litigants with whom the
receiving party might share discovery. Id. See Steede v. Gen. Motors LLC,
W.D.Tenn. No. 2:11-cv-02351-STA-dkv, 2012 U.S. Dist. LEXIS 81103, *16 (Apr. 11,
2012) (rejecting sharing protective order where determination as to whether other
litigant possessed a “substantially similar claim” so as to allow sharing would be left
solely to the discretion of plaintiffs’ attorneys); Bertetto, 2008 U.S. Dist. LEXIS
119233, at *8 (refusing to enter sharing protective order “[b]ecause the provision
would result in the dissemination of Defendants’ confidential information being
removed from meaningful court oversight and left completely in the hands of
Plaintiffs’ attorneys, and as such would be available to any plaintiff who simply filed
suit against Defendants, regardless of the suit’s merits or the relevance of the
materials to the suit”).
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{¶40} The plaintiffs here argue that the work-product doctrine precludes
USX from learning which documents are shared. See Miller v. Gen. Motors Corp.,
192 F.R.D. 230, 231 (E.D.Tenn.2000). But we do not think that the work-product
issues are sufficient to outweigh the legitimate concerns about the protection of
confidential information. First, we find it unlikely that in the ordinary course simply
identifying the names of collateral litigants or attorneys receiving information would
violate the work-product doctrine. And if such a situation does arise, we believe that
it is better handled on a case-by-case basis with specific application to the court
rather than through a blanket grant of authority to plaintiffs’ counsel. We note that
in a number of other cases where sharing with collateral litigants has been allowed,
courts have required disclosure of the identity of the collateral litigants at the time of
sharing. See, e.g., Raymond Handling Concepts Corp. v. Superior Court, 39
Cal.App.4th 584, 587 (Cal.App.1995).
{¶41} Another problem is that there is no provision for the return of
confidential documents at the end of the case. Instead, the court ostensibly retains
jurisdiction to act if someone violates the terms of the order. This not only increases
the risk of USX’s trade secrets falling into the wrong hands, but it also calls for the
court’s involvement in perpetuity. See Williams v. Taser Internatl., Inc., N.D.Ga.
No. 1:06-CV-51-RWS, 2006 U.S. Dist. LEXIS 47255, *10 (June 30, 2006).
E. All this adds up to an abuse of discretion
{¶42} A trial court enjoys broad discretion when regulating discovery, and
its decisions will not be overturned absent an abuse of that discretion. Mauzy, 75
Ohio St.3d at 592, 664 N.E.2d 1272. A court abuses its discretion when its decision is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219, 450 N.E.2d 1140 (1983). An unreasonable decision is one that is not
17 OHIO FIRST DISTRICT COURT OF APPEALS
supported by a “sound reasoning process.” See AAAA Ents., Inc. v. River Place
Community Urban Redev. Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
{¶43} Here, although the trial court held a hearing, there is no indication
that it attempted to balance USX’s interests in protecting its confidential materials
with the interests the plaintiffs and collateral litigants may have in sharing. Rather,
the trial court simply adopted the plaintiffs proposed order in toto. It did not make
any modifications to what plaintiffs had proposed or consider the possibility of any
additional protections for plaintiffs.
{¶44} The end result is an order that (1) allows sharing without any
requirement that the litigation be similar or even that there be litigation at all, (2)
gives plaintiffs’ counsel almost unfettered discretion to choose with whom they will
share documents without any real court supervision, (3) fails to provide USX with
any prior notice or opportunity to object before the sharing of its confidential
documents, and (4) allows USX’s confidential information to be maintained by other
parties in perpetuity. It is at least as broad as any sharing order that this court has
found discussed in the case law.
{¶45} We do not lightly conclude that a trial court abused its discretion in
the management of discovery. But we think the combination of characteristics of this
particular sharing order together with the lack of any real balancing of interests by
the trial court all add up to an abuse of discretion. As a consequence, we sustain the
assignment of error and vacate the protective order.
IV. And in conclusion
{¶46} The assignment of error is sustained, the protective order is vacated,
and the case is remanded to the trial court. We hesitate to tread too far into the
weeds of discovery, a matter best left to the discretion of the trial court, but having
18 OHIO FIRST DISTRICT COURT OF APPEALS
vacated the protective order, it is only fair that we provide some guidance as to what
to do next. On remand, the court should engage in an inquiry consistent with this
opinion to determine what sharing provisions—if any—are appropriate in a
protective order in this case. If the court concludes that a sharing protective order is
necessary, we believe that, at a minimum, such an order should allow USX advance
notice and an opportunity to object to sharing with any particular collateral litigant.
Further, such an order should be limited to those in litigation that is similar or
related to the current litigation.
{¶47} Finally, we note that nothing in this opinion impedes the ability of
plaintiffs to share nonconfidential information. Absent a limiting order, parties to
discovery are free to share such information with whomever they wish. The
protective order that we have vacated made provision for the plaintiffs to object to
any designation by USX of information as confidential, and upon proper objection,
placed the burden on USX to demonstrate its entitlement to confidential treatment.
We expect that any subsequent protective order entered by the trial court will
contain similar provisions.
Judgment vacated and cause remanded.
C UNNINGHAM , P.J., and F ISCHER , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.