     Case: 13-40761   Document: 00512671600   Page: 1   Date Filed: 06/20/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                                      Fifth Circuit

                                                                     FILED
                               No. 13-40761
                                                                  June 20, 2014
                                                                  Lyle W. Cayce
                                                                       Clerk
RESSIE MOORE; ALFRED MOORE; BRIDGETTE JETT; ALMARIA
LUCAS,

                                        Plaintiffs - Appellants
v.

FORD MOTOR COMPANY,

                                        Defendant - Appellee

VOLVO CAR CORPORATION,

                                        Intervenor - Appellee


         ---------------------------------------------
                       Consolidated with No. 13-40774


MARGARITTO BONILLA; EVA MARIA BONILLA, Individually as Legal
Representative of the Estate of David Bonilla and as Next Friend of Andy
Bonilla, a Minor,

                                        Plaintiffs - Appellants
v.

FORD MOTOR COMPANY,

                                        Defendant - Appellee

VOLVO CAR CORPORATION,


                                        Intervenor - Appellee
    Case: 13-40761    Document: 00512671600     Page: 2   Date Filed: 06/20/2014



                                 No. 13-40761
                                 c/w 13-40774


                Appeals from the United States District Court
                      for the Eastern District of Texas


Before STEWART, Chief Judge, and HIGGINBOTHAM and ELROD, Circuit
Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      This is a proceeding to enforce agreed protective orders entered ten years
ago. Pursuant to these orders, Ford Motor Company produced a number of
Volvo Car Corporation documents that it designated as confidential. After
objecting to the confidential status of these documents, plaintiffs distributed
and used them in litigation against Ford competitors. Ford moved to protect
these documents under the agreed protective orders. Rejecting a claim of
waiver, the magistrate judge found the documents to be protected by the
agreed orders. The district court upheld the magistrate judge. We AFFIRM.
                                       I
      Approximately a decade ago, the district court entered virtually identical
agreed protective orders (“Protective Orders”) in Moore v. Ford Motor Company
and Bonilla v. Ford Motor Company. The underlying cases settled, but the
parties were not required to return confidential documents.
      The Protective Orders state, in pertinent part, that:
            At any time after the delivery of documents designated
            “confidential,” counsel for the receiving party may
            challenge the confidential designation of any
            document or transcript (or portion thereof) by
            providing written notice thereof to counsel for the
            opposing party. If the parties are unable to agree as
            to whether the confidential designation of discovery
            material is appropriate, the producing party shall
            have fifteen (15) days to move for protective order with
            regard to any discovery materials in dispute, and shall
                                       2
     Case: 13-40761        Document: 00512671600        Page: 3    Date Filed: 06/20/2014



                                       No. 13-40761
                                       c/w 13-40774
                have the burden of establishing that any discovery
                materials in dispute are entitled to protection from
                unrestricted disclosure. If the producing party does
                not seek protection of such disputed discovery
                materials by filing an appropriate motion with this
                Court within fifteen (15) days, then the disputed
                material shall no longer be subject to protection as
                provided in this order. All documents or things which
                any party designates as “confidential” shall be
                accorded confidential status pursuant to the terms of
                this protective order until and unless the parties
                formally agree in writing to the contrary or
                determinations made by the Court as to confidential
                status.
The Protective Orders also provide that “the provisions of this Order shall
continue to be binding, except with respect to those documents and information
that become a matter of public record. This Court retains and shall have
jurisdiction over the parties and the recipients of the Protected Documents for
enforcement of the provisions of this Order following termination of this
litigation.”
       After the Protective Orders issued, Ford produced approximately three
and a half banker-boxes of Volvo materials, 1 which it designated as
confidential. According to Ford, these materials were not produced at one time,
but were instead produced intermittently over the course of discovery.
       On May 11, 2004, plaintiffs’ counsel emailed Ford, challenging the
confidential status of Volvo documents relating to a presentation allegedly
given to the National Highway Traffic Safety Administration, as well as to a
European University and local civic groups. Ford responded on June 4, 2004,
asking that plaintiffs’ counsel provide the Bates Numbers for the disputed



       1   At the time of document production, Volvo was a wholly owned, indirect subsidiary
of Ford.
                                              3
    Case: 13-40761    Document: 00512671600      Page: 4   Date Filed: 06/20/2014



                                 No. 13-40761
                                 c/w 13-40774
documents so that Ford could directly address plaintiffs’ counsel’s concerns.
Additionally, Ford agreed to drop its claim of confidentiality as to 12
documents, which it identified by Bates Numbers.
      Plaintiffs’ counsel responded on June 23, 2004, explaining that “the
information Ford wanted to remain confidential had been presented to a wide-
variety of individuals, including the media, the University, and civic groups by
Vovlo.” Plaintiffs then explained that they were “taking the position that all
of the materials produced relating to the Volvo XC 90 are no longer confidential
and will begin passing them out to any and everyone that is interested.”
Approximately one month later, plaintiffs’ counsel emailed Ford, asking
“[w]hat’s the word . . . on confidentiality issue[?]” Ford replied the following
day, explaining;
            With respect to the confidentiality issues raised in
            your earlier e-mail, Ford does not contend that the
            presentations which appear in the NHTSA docket are
            confidential, and Ford agrees that you need not treat
            the presentation referenced at page 157 of Broberg’s
            deposition . . . as confidential. Ford is evaluating your
            claim that the Autoliv and Volvo materials as a whole
            should no longer be classified as confidential. Ford
            expects you to abide by the terms of the Protective
            Orders in the meantime.
Plaintiffs’ counsel responded, “I gave Ford adequate time. I am sending the
materials out. Thanks for trying.” Plaintiffs’ counsel did not identify to which
“materials” he was referring.
      On February 22, 2005, plaintiffs’ counsel emailed Ford, asking for
another update on the “confidentiality issue.” Ford replied by letter on March
8, 2005: “Although Ford disagrees with your arguments in support of de-
designating several of the items [identified by Bates Numbers] above, it agrees,



                                       4
     Case: 13-40761        Document: 00512671600          Page: 5     Date Filed: 06/20/2014



                                        No. 13-40761
                                        c/w 13-40774
in the spirit of cooperation, to officially de-designate (remove from the
Protective Order) the above Volvo documents.” 2
       On February 1, 2012, Ford received an affidavit from a plaintiff’s expert
in an Idaho state court action that provided a document listing Volvo
documents produced in the Moore and Bonilla actions. The affidavit explained
that plaintiffs’ counsel believed that Ford had waived the confidential status
of these documents. Soon thereafter, Ford sought to enforce the Protective
Orders in the Moore and Bonilla proceedings where they were originally
entered, as well as in Adams v. Ford, a District Court for the Virgin Islands
case wherein Ford produced the same documents subject to a similar protective
order. The Adams court granted Ford’s motion on March 8, 2012.
       On August 24, 2012, the magistrate judge held a hearing on Ford’s
motion to enforce the Protective Orders. The parties submitted briefs and
presented oral argument. The magistrate judge then issued his ruling. First,
he explained that the “purpose of protective orders such as the one entered by
Judge Ward in the Moore and Bonilla cases is to facilitate discovery during
litigation to allow parties to exchange potentially confidential material with
confidence without the Court having to litigate whether or not the material is
actually confidential and entitled to protection.” He explained that he would
try to “give life to the literal meaning on the orders,” while keeping in mind
their purpose. The magistrate judge then found that “the Plaintiff did put the
Defendant on notice of a challenge by way of the e-mails that have been cited
of May 11 and June 23.” But he found that “Plaintiff continued thereafter to
negotiate, and the matter appeared to have been resolved. There’s no evidence



       2 Although plaintiffs also offer a May 3, 2006 email, we will not consider this on appeal,
as it was not in the record before the magistrate judge, whose factual findings we review for
clear error. See Fed.R.Civ.P. 72(a).
                                               5
     Case: 13-40761       Document: 00512671600         Page: 6    Date Filed: 06/20/2014



                                      No. 13-40761
                                      c/w 13-40774
of . . . a clear written notice thereafter to Ford challenging the confidential
designation of these documents[.]” The magistrate judge explained that later
“discussion about waiver are not really challenges to the confidentiality of the
documents;” instead, these later discussions “are arguments about whether or
not some prior activity waived that protection.” The magistrate judge then
held that “there is no waiver in this case of the protection of the two protective
orders,” and that any issue as to whether a document should be afforded
confidential status should be addressed by a court where there is a live claim.
       Plaintiffs filed an objection to the magistrate judge’s order with the
district court, and moved for leave to depose a corporate representative of Ford.
The district court overruled the objection, and denied the motion. Plaintiffs
timely appeal.
                                             II
       It is axiomatic that “[s]ubject to certain exceptions, this court only has
jurisdiction over ‘final decisions’ of the district court.” 3 And discovery orders
“generally do not end the litigation on the merits and leave nothing for the
court to do but execute the judgment.” 4 Here, final judgment has been entered
in the original cases, 5 and the appeal of the district court’s order overruling
plaintiffs’ objection is properly taken.
       A magistrate judge’s non-dispositive order may only be set aside if it “is
clearly erroneous or is contrary to law.” 6 Accordingly, we review “factual


       3  A-Mark Auction Galleries, Inc. v. Amer. Numismatic Ass’n, 233 F.3d 895, 897 (5th
Cir. 2000) (citing 28 U.S.C. § 1291).
        4 Id. (quoting Catlin v. United States, 324 U.S. 229, 233 (1945)) (internal quotation

marks omitted).
        5 See R. 970–72 (dismissing case with prejudice pursuant to stipulation of dismissal

between the parties).
        6 Fed.R.Civ.P. 72(a); 28 U.S.C. § 6369(b)(1)(A) (magistrate judge’s nondispositive

orders may be reconsidered only “where it has been shown that the magistrate judge’s order
is clearly erroneous or contrary to law”).
                                             6
     Case: 13-40761        Document: 00512671600           Page: 7     Date Filed: 06/20/2014



                                        No. 13-40761
                                        c/w 13-40774
findings under a clearly erroneous standard,” while “legal conclusions are
reviewed de novo.” 7
          Plaintiffs argue that the magistrate judge erred in concluding that Ford
did not waive the confidential status of the disputed documents. First, they
argue that the plain language of the Protective Orders required Ford to move
for a protective order within 15 days of a challenge to the confidential status of
a document. Thus, plaintiffs argue, Ford had to move for a protective order
within 15 days of June 23, 2004, and its failure to do so constitutes waiver.
Second, plaintiffs argue that the magistrate judge’s finding that the parties
had negotiated and resolved the dispute over confidentiality in 2005 was
clearly erroneous.
          Analysis begins with the plain language of the Protective Orders, 8 and
the “textual interpretation of a court order is ultimately a legal question[.]” 9
At the outset, we note that the Protective Orders are ambiguous and lend
themselves to one of two readings. As the magistrate judge—and Ford—read
them, the Protective Orders contemplate the following system for challenging
the designation of documents as confidential:
   (i)        “counsel for the receiving party may challenge the confidential
              designation of any document or transcript (or portion thereof) by
              providing written notice thereof to counsel for the opposing party[;]”
   (ii)       “If the parties are unable to agree as to whether the confidential
              designation of discovery material is appropriate[;]”
   (iii)      “the producing party shall have fifteen (15) days to move for protective
              order with regard to any discovery materials in dispute, and shall


         Alldread v. City of Grenada, 988 F.2d 1425, 1434 (5th Cir. 1993).
          7

         See, e.g., S.E.C. v. Merrill Scott & Associates, Ltd., 600 F.3d 1262, 1272 (10th Cir.
          8

2010) (“The starting point for interpretation of a protective order lies in its plain language.”).
       9 In re Equalnet Comms. Corp., 51 F.App’x 483, at *1 (5th Cir. 2002) (unpublished).

                                                7
     Case: 13-40761        Document: 00512671600          Page: 8     Date Filed: 06/20/2014



                                        No. 13-40761
                                        c/w 13-40774
            have the burden of establishing that any discovery materials in
            dispute are entitled to protection from unrestricted disclosure.”
Put another way, the magistrate judge read the Protective Orders to create a
system whereby first a party produces documents and designates them as
confidential. The receiving party must then inform the producing party that
it disagrees with the confidential designation. The parties must then negotiate
between themselves to resolve the dispute. Finally, if the parties are unable
to resolve the dispute on their own, only then is the producing party required
to move for a protective order within 15 days. Such a system is a sound one,
as it provides for the efficient handling of confidential materials, and involves
the courts only where the parties have failed to resolve disputes on their own.
       Plaintiffs and the dissent argue that the 15 day period for seeking a
protective order begins with the notification by the receiving party, not the
failure to negotiate a resolution. This interpretation may well be the better
reading without more, but the parties understanding of these agreed orders
bears upon the interpretation, 10 and the actions of both parties strongly
suggest that neither understood the 15 days to run from the date of
notification: Ford responded over 20 days after plaintiffs’ initial objection to
request additional information, and plaintiffs’ counsel took another 20 days to
reply. And although plaintiffs’ counsel suggested that he was sending “the
materials out” several months after his initial objection, he continued to
negotiate with Ford into the following year, asking for an update on the status
of the confidential materials. In short, plaintiffs’ actions in 2004 and 2005 are



       10Since the Protective Orders are ambiguous in this regard, and given that rules of
contract interpretation are applied to agreed orders, see Hartford v. Chase, 942 F.2d 130,
134–35 (2d. Cir. 1991), “[p]arol evidence—such as the parties’ course of performance—may
be used to ascertain the intent of the parties . . . .” Addicks Services, Inc. v. GGP-Bridgeland,
LP, 596 F.3d 286, 294 (5th Cir. 2010).
                                               8
    Case: 13-40761     Document: 00512671600     Page: 9   Date Filed: 06/20/2014



                                 No. 13-40761
                                 c/w 13-40774
at odds with their present interpretation of the Protective Orders. Accordingly,
we agree with the magistrate judge’s holding that the Protective Orders did
not require Ford to seek a protective order until the parties’ own negotiations
failed to resolve the dispute.
      Turning to the magistrate judge’s factual findings, we cannot conclude
that the magistrate judge’s finding that Ford did not waive the Protective
Orders is clearly erroneous. Here, Ford produced a number of documents that
it designated as confidential. It is undisputed that, at the time of production,
these were protected by the Protective Orders until plaintiffs challenged the
confidential designation. After receiving the documents, plaintiffs notified,
albeit without specificity, Ford that they objected to the confidential status of
some of the documents. The parties then engaged in a protracted negotiation,
wherein Ford first sought specificity as to which documents plaintiffs’ objected
to, and then de-designated a number of documents. At this point, there does
not appear to be any further discussion between the parties about whether the
documents were properly designated as confidential. Since there were no
additional objections to the designation of the remaining documents as
confidential, Ford was not required to seek protective orders.
      To be sure, plaintiffs and the dissent point to affidavits filed in 2006 and
2009 in other cases, wherein plaintiffs’ counsel claims that Ford has waived
confidentiality. But we cannot say that these affidavits constitute “written
notice” to “challenge the confidential designation” of these documents. At best,
these only put Ford on notice that plaintiffs’ counsel considered Ford to have
waived confidentiality, not that the documents were improperly designated as
confidential.
      Finally, the dissent expresses concern that the magistrate judge’s
decision countenances gamesmanship by Ford. Yet, the record in this case

                                        9
    Case: 13-40761         Document: 00512671600           Page: 10     Date Filed: 06/20/2014



                                         No. 13-40761
                                         c/w 13-40774
demonstrates gamesmanship by both parties: plaintiffs sought to void
confidential designations by vague, generalized objections to all the
documents, and Ford likely over-designated documents as confidential.
Although on de novo review a different outcome may obtain, the magistrate
judge’s finding that Ford did not waive the protection of the Protective Orders
is plausible and supportable by the record and is not clearly erroneous. 11
                                               III
       We review the “discovery decisions of the trial judge . . . for abuse of
discretion.” 12 Accordingly, a “district court’s discovery decision will be reversed
only if it is ‘arbitrary or clearly unreasonable,’ and the appellant demonstrates
prejudice resulting from the decision.” 13
       Plaintiffs argue that the district court erred in denying their request for
leave to depose Ford’s corporate representatives. In so arguing, they rely on
Freeman v. County of Bexar for the proposition that “a district court may . . .
consider evidence presented for the first time in a party’s objection to the
magistrate judge’s recommendation.” 14
       Plaintiffs’ reliance on Freeman is misplaced. At issue there was a report
and recommendation, subject to de novo review under Fed.R.Civ.P. 72(b). At
issue here is a non-dispositive order subject to Rule 72(a) clear error review.
Because the district court’s review of the magistrate judge’s factual findings
was limited to clear error review, there appears to be no basis for the district




       11  See, e.g., St. Aubin v. Quarterman, 470 F.3d 1096, 1101 (5th Cir. 2006) (“A finding
is clearly erroneous only if it is implausible in the light of the record considered as a whole.”).
        12 Fielding v. Hubert Burda Media, 415 F.3d 419, 428 (5th Cir. 2005) (citing Wichita

Falls Office Assocs. v. Banc One Corp., 978 F.2d 915, 918 (5th Cir. 1992)).
        13 Id. (quoting Mayo v. Tri-Bell Indus., Inc., 787 F.2d 1007, 1012 (5th Cir. 1986))

(internal citation omitted).
        14 142 F.3d 848, 850–53 (5th Cir. 1998).

                                               10
    Case: 13-40761         Document: 00512671600           Page: 11     Date Filed: 06/20/2014



                                         No. 13-40761
                                         c/w 13-40774
court to have received additional evidence. 15 Accordingly, the district court did
not abuse its discretion in denying leave to depose Ford’s corporate
representative.
       For these reasons, we AFFIRM.




       15 See, e.g., Haines v. Liggett Grp., Inc., 975 F.2d 81, 91 (3d Cir. 1992) (Under Rule
72(a), “the district court is not permitted to receive further evidence; it is bound by the clearly
erroneous rule in reviewing questions of fact.”).
                                               11
   Case: 13-40761     Document: 00512671600      Page: 12   Date Filed: 06/20/2014



                                  No. 13-40761
                                  c/w 13-40774
JENNIFER WALKER ELROD, Circuit Judge, dissenting:
      I respectfully dissent.   Under the plain language of the Protective
Orders, Ford waived any claim to confidentiality for the Volvo materials by
failing to seek a protective order within 15 days of learning that Plaintiffs
disputed their confidentiality and intended to release the Volvo materials.
      The rules governing discovery in federal court are designed to
“accomplish full disclosure of the facts, eliminate surprise, and promote
settlement.”   S. Ry. Co. v. Lanham, 403 F.2d 119, 127 (5th Cir. 1968)
(discussing Federal Rule of Civil Procedure 34). As a result, the “deposition-
discovery rules are to be accorded a broad and liberal treatment.” Hickman v.
Taylor, 329 U.S. 495 (1947). Protective orders serve as narrow exceptions to
this general rule of disclosure, and allow parties to keep specific categories of
documents confidential by agreement. See 8A Charles A. Wright & Arthur R.
Miller, Federal Practice & Procedure § 2043 (3d ed.) (“It is well settled that
there is no absolute privilege for trade secrets and similar confidential
information.”). Unless materials are covered by the protective order, they are
subject to the liberal disclosure provisions of the Federal Rules of Civil
Procedure. “It is for the party resisting discovery to establish, in the first
instance, that the information sought is within this provision of the rule.” Id.
      The parties’ agreement in a protective order governs not only what
materials are protected, but also the method of contesting a confidentiality
determination. “The starting point for interpretation of a protective order lies
in its plain language.” S.E.C. v. Merrill Scott & Associates, Ltd., 600 F.3d 1262,
1271–72 (10th Cir. 2010) (citations omitted). When a protective order is “part
of a court-approved agreement, it must be construed according to general
principles of contract law.” See City of Hartford v. Chase, 942 F.2d 130, 134–
35 (2d Cir. 1991) (citations omitted). “Thus, deference is to be paid to the plain

                                       12
    Case: 13-40761     Document: 00512671600     Page: 13   Date Filed: 06/20/2014



                                  No. 13-40761
                                  c/w 13-40774
meaning of the language . . . and the normal usage of the terms selected.” Id.
(alteration in original).   “An agreed protective order may be viewed as a
contract, and once parties enter an agreed protective order they are bound to
its terms.”    Orthoflex, Inc. v. ThermoTek, Inc., 3:11-CV-0870-D, 2013 WL
3095106, at *3 (N.D. Tex. June 20, 2013) (internal quotation marks and
citations omitted). “As with all contracts, the ultimate question is what was
the parties’ mutual intent. The answer to that question is to be found within
[the protective order’s] four corners, and not by reference to what might satisfy
the purposes of one of the parties to it.” Id.
      Here, the Protective Orders provide that:
              If the parties are unable to agree as to whether the
              confidential designation of discovery material is
              appropriate, the producing party shall have fifteen
              (15) days to move for protective order with regard to
              any discovery materials in dispute, and shall have the
              burden of establishing that any discovery materials in
              dispute are entitled to protection from unrestricted
              disclosure. If the producing party does not seek
              protection of such disputed discovery materials by
              filing an appropriate motion with this Court within
              fifteen (15) days, then the disputed material shall no
              longer be subject to protection as provided in this
              order.
Thus, under the plain language of the Protective Orders, Ford had 15 days
from the time that it received notice that any discovery materials were in
dispute to seek a protective order from the court.
      Plaintiffs repeatedly placed Ford on notice that they intended to release
the materials at issue here, and Ford repeatedly acknowledged that the
confidentiality of these materials was in dispute. On May 11, 2004, Plaintiffs
submitted a written challenge to Ford regarding the confidential status of the
Volvo materials.     Again on June 23, 2004, the parties corresponded and

                                        13
   Case: 13-40761     Document: 00512671600      Page: 14   Date Filed: 06/20/2014



                                  No. 13-40761
                                  c/w 13-40774
expressed disagreement about the confidentiality of Volvo materials. Plaintiffs
also indicated in the same e-mail that they would not distribute the Volvo
materials until July 1, 2004, to give Ford additional time to file a motion for
protection with the court or voluntarily remove the confidential designation of
the documents, but that after that, the information would be treated as public
as set forth in the Protective Orders. Plaintiffs waited until July 23, 2004, and
then made clear to Ford that they considered the discussion of confidentiality
over, and intended to release the materials. As Plaintiffs’ counsel stated in a
July 23, 2004, e-mail to Ford, “I gave Ford adequate time. I am sending the
materials out.” Ford failed to file a motion within 15 days. Plaintiffs then
proceeded to disseminate the Volvo materials.
      These repeated warnings were sufficient to make clear to Ford that the
confidentiality of the Volvo materials was in dispute. Even if these warnings
did not put Ford on notice to file its motion, Plaintiffs once again noticed Ford
that the confidentiality of the documents was “in dispute” the following year.
In February and March of 2005, the parties once again corresponded about the
confidentiality of these documents. In its response to Plaintiffs, Ford explicitly
noted that it “disagree[d] with [Plaintiffs’] arguments in support of de-
designat[ing]” some of the Volvo materials. Still, Ford did not file a motion
within 15 days.
      Finally, in both 2006 and 2009, counsel for Plaintiffs submitted affidavits
in litigation against Ford explaining that certain Volvo materials were not
subject to protection, and explaining how and why Ford had waived the
protected status of those materials. Once again, Ford failed to file a motion
within 15 days of either of these submissions. Instead, Ford finally filed its




                                       14
    Case: 13-40761        Document: 00512671600          Page: 15     Date Filed: 06/20/2014



                                       No. 13-40761
                                       c/w 13-40774
motion long after the Volvo materials had been distributed and used in other
proceedings. 1
       The panel opinion suggests that the 15-day period for seeking a
protective order only begins to run once the parties are unable to resolve the
dispute on their own, and seems to allow a limitless period for these party
negotiations to occur. But this reading strains the plain language of the
Protective Orders, which only require the confidentiality of the documents to
be “in dispute” in order to trigger the 15-day period. Even assuming arguendo
that there was any ambiguity as to whether Ford needed to seek protection
from the court, we would construe such ambiguity in favor of Plaintiffs because
Ford drafted the Protective Orders. See Richland Plantation Co. v. Justiss–
Mears Oil Co. Inc., 671 F.2d 154 (5th Cir. 1982) (explaining that when a
contract is ambiguous, Texas courts will construe the agreement more strictly
against the party who drafted it). Moreover, by their own terms the Protective
Orders placed the burden on Ford, 2 as the party asserting that the Volvo
materials were entitled to protection, to establish that such protection was
warranted.



       1  Plaintiffs assert that they “disseminated the information freely to lawyers, expert
witnesses, media representatives, court personnel and others.” Plaintiffs’ counsel submitted
the first affidavit discussed above in Matey v. Ford, a case filed in Idaho. Plaintiffs’ counsel
subsequently filed a similar affidavit in Jones v. Ford, a case filed in Texas.

       2  Ford is a sophisticated party, capable of drafting a protective order that had more
formal notice requirements or that included clearer language regarding the negotiation of
confidentiality. See U.S. Philips Corp. v. Iwasaki Elec. Co., Ltd., 142 F. App’x 516, 518 (2d
Cir. 2005) (“[T]he plain language of the protective order, which affords broad discretion to the
district court, does not support that argument. Indeed, if U.S. Philips and Royal Philips had
wished to limit paragraph 11 disclosure in such a fashion, these sophisticated parties could
certainly have drafted the protected order to so state. They did not.”); Orthoflex, 2013 WL
3095106, at *4 (“The parties’ mutual intent, as reflected within the four corners of the
Protective Order, does not include an exception for information that became public in error.
They presumably knew how to include such a clause had this been their intention.”).
                                              15
    Case: 13-40761    Document: 00512671600       Page: 16   Date Filed: 06/20/2014



                                   No. 13-40761
                                   c/w 13-40774
      Protective orders, like the ones the parties entered into here, are meant
to prevent gamesmanship and provide for efficient resolution of discovery
issues. See, e.g., 3 Paul J. Bschorr and John F. Collins, Business & Commercial
Litigation in Federal Courts § 22:18 (3d ed.) (noting that one role of the
protective order is to help prevent abuse of the discovery process); Jay E.
Grenig and Jeffrey S. Kinsler, Handbook of Federal Civil Discovery &
Disclosure § 1:61 (3d ed.) (“The purpose of the protective order is not to prevent
full disclosure, but to minimize the disruption and inconvenience inherent in
discovery.”).   Here, the parties designated a 15-day period so that such
discovery disputes could be resolved in a timely fashion as they arose. Yet
under the panel opinion’s interpretation of the provision, Ford was able to
undermine this purpose through vague, non-responsive answers to Plaintiffs’
notices, and by refusing to answer Plaintiffs at all. Indeed, Ford avoided giving
Plaintiffs a straight answer regarding the confidentiality of the Volvo
materials for more than eight years after receiving notice that Plaintiffs
contested their confidentiality.     Allowing Ford to claim that these same
materials are protected years too late only encourages gamesmanship in the
discovery process, and leaves parties like Plaintiffs here without recourse if the
opposing party refuses to take a position regarding confidentiality.
Respectfully, I dissent.




                                       16
