Kraszewski v. State Farm General Insurance

139 F.R.D. 156, 91 Daily Journal DAR 13219, 1991 U.S. Dist. LEXIS 15273, 56 Fair Empl. Prac. Cas. (BNA) 1030, 1991 WL 211208
CourtDistrict Court, N.D. California
DecidedJune 17, 1991
DocketNo. C 79-1261 TEH
StatusPublished
Cited by5 cases

This text of 139 F.R.D. 156 (Kraszewski v. State Farm General Insurance) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kraszewski v. State Farm General Insurance, 139 F.R.D. 156, 91 Daily Journal DAR 13219, 1991 U.S. Dist. LEXIS 15273, 56 Fair Empl. Prac. Cas. (BNA) 1030, 1991 WL 211208 (N.D. Cal. 1991).

Opinion

ORDER

THELTON E. HENDERSON, Chief Judge.

This matter comes before the court on class counsel’s motion to modify the January 28, 1980 protective order in this case. Class counsel requests that the court modify the protective order to release from its coverage documents which pertain to State Farm’s recruitment and selection of trainee agents on the basis of their age so that those documents may be used in a separate age discrimination lawsuit being handled by Class Counsel in the Central District of California. Pines v. State Farm Gen. Ins. Co., SA CV 89 631 AHS (Stotler, D.J., C.D.Cal.)

After careful consideration of the parties’ memoranda, declarations, and exhibits, it appears to the satisfaction of the court therefrom that the protective order should be MODIFIED in the manner specified below.

BACKGROUND

The instant case is a sex discrimination class action in which the defendant, State Farm, was found liable for discrimination against a class of women, employees and [158]*158job applicants as a result of certain hiring and promotion practices. On January 28, 1980, Judge Renfrew entered a protective order stipulated to by the parties in this action. The protective order provides that:

All personnel records or files of any individual not a named party to this action, and all documents, records, interrogatory answers, or other material which is stamped by the party producing the material or answering the interrogatory with the notation “confidential” shall come within the provisions of this Order and shall be considered “confidential information.”

January 28, 1980 Protective Order at 1. The protective order provides that any document marked “confidential” “shall be used only for the purposes of this litigation and not for any other purpose whatsoever ...” Id., and that “[t]his Order is without prejudice to the right of any party to seek modification of it from the Court with respect to any specified materials.” Id. at 4.

A tremendous amount of discovery has taken place in this action under the protective order. Of the documents produced, State Farm has chosen to mark a large number as “confidential.” In addition to these, on November 1, 1984, this court determined that personnel records and files of individuals not named to this action are within the provisions of the protective order, regardless of whether they are marked “confidential.”

The same class counsel has now brought another class action lawsuit against State Farm. In Pines v. State Farm Gen. Ins. Co., filed in the Central District of California on September 8, 1989, class counsel contends that State Farm discriminated in its recruitment and selection of Trainee Agents on the basis of their age in violation of the Age Discrimination in Employment Act of 1967. Among the plaintiffs in the Pines case are Barbara Pines, the named plaintiff, and Carol Fulton, both of whom are plaintiffs in Kraszewski.

Class counsel are now in the early discovery stage in Pines. Class counsel contends that much of the discovery from this case is directly relevant to the Pines action, and that modification of the protective order would avoid much costly and time-consuming duplication of discovery. The relevant documents allegedly include policy documents; documents from personnel files; transcripts of deposition testimony in which State Farm decision makers allegedly consistently reported that they looked for applicants in the 25 to 45 year age group; and depositions of claimants who allegedly reported having been told that they were too old to become Trainee Agents. Modification of the protective order would allegedly save class counsel the laborious project of repeating the vast discovery which has already been completed in this case.

PRELIMINARY MATTERS Standing

State Farm contends that class counsel has no standing to bring the instant motion. State Farm argues that the Saperstein firm has brought this motion for the benefit of plaintiffs in an entirely different case, the Pines class action. State Farm claims that without formally intervening, the Pines plaintiffs cannot bring this motion.

State Farm fails to recognize that Barbara Pines, and at least one other of the Pines plaintiffs are also plaintiffs in Krasz-ewski. They are represented by Saperstein in both actions, and clearly have standing to bring this motion. Furthermore, it is clear that if the formality of intervention were required, there is ample precedent for us to allow the Pines plaintiffs to permissively intervene in this action for the limited purpose of gathering the discovery information sought.

Reliance

State Farm argues that throughout the lengthy discovery proceedings in this action, it has surrendered various documents and other discovery materials with the understanding that the discovery would be used only in this action. It argues that both parties agreed to the terms of the protective order, and now that the discovery has been completed, class counsel should not be allowed to change the terms of that protective order.

State Farm proves too much. State Farm, like class counsel agreed to the [159]*159terms of the protective order. That protective order explicitly provided that it was “without prejudice to the right of any party to seek modification of it from the Court with respect to any specified materials.” supra. State Farm may not now be heard to complain when class counsel takes advantage of the modification provision to which both parties agreed.

ANALYSIS

The law in the Ninth Circuit is settled. In cases such as this one, the protective order should be amended to allow use of the discovery in the other litigation. Olympic Refining Co. v. Carter, 332 F.2d 260 (9th Cir.), cert. den., 379 U.S. 900, 85 S.Ct. 186, 13 L.Ed.2d 175 (1964). The authority cited by State Farm is out-of-circuit, off-point, and wholly unpersuasive.

In Olympic Refining the Ninth Circuit established the principle which has remained the rule in this and virtually all other circuits ever since. In Olympic, a private party brought an anti-trust action, and sought documents which had been discovered in another anti-trust case which had been brought several years earlier. Many of the documents produced in the earlier action were covered by a protective order similar to the one in this case, and were directly relevant to the later action.

The Ninth Circuit held that the protective order should have been modified to allow use of the protected documents in the second action, even if the defendants in the government case had released the information in reliance on the protective order. 332 F.2d 260, 264. The Olympic court stated that the protective order at issue was “subject to modification to meet the reasonable needs of other parties in other litigation,” based on the principle that ordinarily discovery is to be conducted “in public.” Id., citing Fed.R.Civ.P. 43(a). The court continued that:

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139 F.R.D. 156, 91 Daily Journal DAR 13219, 1991 U.S. Dist. LEXIS 15273, 56 Fair Empl. Prac. Cas. (BNA) 1030, 1991 WL 211208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kraszewski-v-state-farm-general-insurance-cand-1991.