Filed: Aug. 02, 2017
Latest Update: Aug. 02, 2017
Summary: MEMORANDUM OPINION IN SUPPORT OF PROTECTIVE ORDER LAWRENCE L. PIERSOL , District Judge . FACTUAL BACKGROUND The following factual allegations are contained in Plaintiffs' Complaint. Doc. 1. In June of2015, Plaintiff Duane Eisenberg underwent aortic valve replacement surgery at Sanford Medical Center in Sioux Falls, South Dakota. Id. at 38. In the months following his surgery, Mr. Eisenberg's health steadily deteriorated and in November of 2016, he was diagnosed with mycobacterium chim
Summary: MEMORANDUM OPINION IN SUPPORT OF PROTECTIVE ORDER LAWRENCE L. PIERSOL , District Judge . FACTUAL BACKGROUND The following factual allegations are contained in Plaintiffs' Complaint. Doc. 1. In June of2015, Plaintiff Duane Eisenberg underwent aortic valve replacement surgery at Sanford Medical Center in Sioux Falls, South Dakota. Id. at 38. In the months following his surgery, Mr. Eisenberg's health steadily deteriorated and in November of 2016, he was diagnosed with mycobacterium chima..
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MEMORANDUM OPINION IN SUPPORT OF PROTECTIVE ORDER
LAWRENCE L. PIERSOL, District Judge.
FACTUAL BACKGROUND
The following factual allegations are contained in Plaintiffs' Complaint. Doc. 1.
In June of2015, Plaintiff Duane Eisenberg underwent aortic valve replacement surgery at Sanford Medical Center in Sioux Falls, South Dakota. Id. at ¶ 38. In the months following his surgery, Mr. Eisenberg's health steadily deteriorated and in November of 2016, he was diagnosed with mycobacterium chimaera(M chimaera). Id. at ¶¶ 39-41. In December of2016, Plaintiffs filed suit against Defendants alleging Mr. Eisenberg was exposed to M. chimaera during surgery as a result of the use of Defendants device, the Sorin 3T Heater-Cooler (the "3T Device"). Id. at ¶¶ 49-93.
PROCEDURAL BACKGROUND
On June 22, 2017, Defendants filed a Motion for Entry of a Protective Order and Plaintiffs responded. Doc. 40-41. The parties agreed as to the contents of the proposed protective order, with the exception of Paragraphs 2 and 3, which concerned the scope of access to and use of protected confidential information. Defendants' proposed order sought to limit dissernination of confidential information to this case and any other cases where Plaintiffs' counsel is counsel of record.1 Doc. 40; 43. Conversely, Plaintiffs' proposed order sought to expand the protective order to allow counsel for victims to share produced documents and information.2 Doc. 41.
On July 7, 2017, after consideration of the two proposed orders, the Court entered Plaintiffs' proposed protective order. Doc. 44.
DISCUSSION
Rule 26(c) of the Federal Rules of Civil Procedure governs the granting of a protective order and requires that "good cause" be shown for a protective order to he issued. FED. R. CIV. P. 26(e); Gen. Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212 (8th Cir. 1973), Pansy v. Borough of Stroudshurg, 23 F.3d 772, 786 (3d Cir. 1994)(citations omitted)(finding that "it is well-established that a party wishing to obtain an order of protection over discovery materials must demonstrate that `good cause' exists for the order of protection."). Federal courts use a balancing test in determining whether good cause exists for a protective order—balancing the requesting party's need for information against the injury that may result if uncontrolled disclosure is compelled. Pansy, 23 F.3d at 787 (citing Arthur R. Miller, Confidentiality, Protective Orders, and Public Access to the Courts, 105 Harv. L. Rev. 427, 433-35 (1991)).
Courts consider a variety of factors to determine if a protective order is appropriate. Id. at 787-88. These factors include:
1. Whether disclosure will violate privacy interests;
2. Whether the information is being sought for a legitimate purpose or for an improper pqrpose;
3. Whether disclosure of the information will cause a party embarrassment;
4. Whether confidentiality is being sought over information important to public health and safety;
5. Whether the sharing of information among litigants would promote fairness and efficiency;
6. Whether a party benefitting from the order is a public entity or official;
7. Whether the case involves issues important to the public.
Id. The above-listed factors "are unavoidably vague" in order to allow district courts the flexibility to properly consider the eireumstanees of each case. Id. at 789; Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984)(finding that "Rule 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required.").
Here, the Court entered Plaintiffs' proposed protective order pursuant to factors 1, 5, and 7.
The disclosures do not violate Defendants'privacy interests
Plaintiffs' proposed order is sufficiently tailored to allow Only counsel in other cases against Defendants to have access to protected materials. Contrary to defense counsel's argument that "[n]othing would prevent counsel (Or parties) in non-South Dakota cases fiom sharing the discovery documents publicly[,]" doc. 40 at 8-9, the protective order adequately restricts access to only those individuals associated with a "Related Action" and also includes a "Written Understanding" form that counsel and/or parties in related actions execute prior to receiving protected materials. See Doc. 44 ¶¶ 2-3; Doc. 44-1 (Exhibit A). These inclusions sufficiently protect Defendants'privacy interests.
The sharing ofinformation among litigants will promotefairness and efTiciency
Besides the present action, fifteen other suits remain pending against Defendants.3 On April 5, 2017, the Multi-District Panel denied a motion for centralization in the District of South Carolina finding that "Section 1407 centralization would provide little or no benefit" as "any overlapping pretrial proceedings have been and can continue to be handled through information coordination." In re Sorin 3T Heater-Cooler Sys. Prod. Liab. Litig., No. MDL 2772, 2017 WL 1282908, at *1 (U.S. Jud. Pan. Mult. Lit. Apr. 5, 2017). To this effect, the Panel explained that
[The] ten actions [in South Carolina] were brought by iust two groups of plaintiffs' cmmsel [] [and] [o]f the remaining six actions, four were brought bv the same plaintiffs' counsel, and the parties to those actions already are working successfully to minimize overlapping pretrial proceedings by, for example, sharing discovery produced in multiple actions.
Id. (emphasis added). Therefore, other than Plaintiffs' counsel in the present case, only four other attorneys and/or law firms are currently associated with the actions against Defendants, and according to the Panel, most are already successfully sharing discovery information. Additionally, all of the actions currently pending against Defendants involve the alleged mechanism of infection and design defect of the 3T Device. Thus, information sought by counsel and/or parties in eaeh of the related actions, or future actions, will be similar and relevant in each ease.
The case involves issues important to the public
Cases involving serious issues eoneeming human health are issues particularly important to the public. While the Court, in issuing Plaintiffs' protective order, makes no judgment as to the truth or falsify of Plaintiffs' alleged claims, it notes the serious health implications involved in this lawsuit, and the fifteen other lawsuits pending across the nation.
CONCLUSION
Defendants' arguments that its protected materials will he "freely used" with counsel, parties, and/or the public is unfounded based on the provisions of the protective order, the Court's interests in fostering fairness and effieieney in this ease and other related actions, and the serious public health implications. Similar to the findings of the Panel, the Court too finds that the issuance of Plaintiffs' protective order will work to promote fairness and efficiency by "minimiz[ing] overlapping pretrial proceedings by . . . sharing discovery. . . ." Id.
