Tudor v. State Farm General Insurance Company

Background

The case was referred to the court for discovery purposes. Tudor and State Farm agreed that a protective order should govern confidential information and documents produced during discovery, but they could not resolve several proposed changes to the Northern District of California’s model stipulated protective order.

The primary dispute involved Tudor’s consulting attorneys—attorneys who were not counsel of record but who might advise Tudor about the litigation. State Farm proposed excluding consulting attorneys from the definition of experts who could receive confidential information and requiring advance notice, including the consultant’s identity and signed agreement, before confidential information was disclosed. Tudor opposed those changes and argued that they could interfere with attorney-client, attorney-work-product, and attorney-consultant protections. Tudor proposed clarifying that consultants who agreed to follow the protective order could receive confidential information.

State Farm also proposed changes concerning the timing for designating deposition testimony, treating references to the existence of protected documents as restricted use, limiting disclosure to people who had previously possessed or knew the information to those who had done so lawfully, and several miscellaneous provisions. The parties also discussed issues unrelated to the protective-order dispute, including whether Tudor timely produced a video.

Court’s analysis

The court explained that protective orders are governed by Federal Rule of Civil Procedure 26(c), and that courts have broad discretion to manage discovery and tailor protective orders. The court stated that the Northern District’s model protective order is presumptively reasonable. A party seeking to depart from that model bears the burden of showing the specific harm or prejudice that would result if the proposed change were not adopted.

The court found that neither party’s proposed consulting-attorney provisions adequately addressed both concerns: State Farm’s concern about access by unidentified attorneys and Tudor’s concern about interference with the selection of consultants. Relying in part on the approach discussed in an earlier Northern District of California decision, the court adopted a two-tier structure with “Confidential” and “Highly Confidential” designations. A party may disclose ordinary “Confidential” material to a non-testifying consultant, including a consulting attorney, without identifying that person, so long as the consultant agrees to be bound by the protective order. Disclosure of “Highly Confidential” material to such a consultant requires identification and the procedures allowing the designating party to object before disclosure.

The court rejected both parties’ proposed edits directed to the consulting-attorney dispute and ordered that the final protective order reflect the two-tier structure. Materials already produced and designated “Confidential” under the parties’ proposed single-tier orders must be treated as “Highly Confidential” unless they are entirely de-designated or re-designated as merely “Confidential.”

The court denied State Farm’s proposed deposition-designation changes because State Farm did not explain the specific harm or prejudice that would result from retaining the model order’s procedures. The court also denied State Farm’s proposed language concerning references to the existence of protected materials because State Farm had not shown specific harm or prejudice. The court denied State Farm’s proposed “lawfully” limitation for people who previously possessed or knew the information for the same reason. The court denied State Farm’s miscellaneous proposed edits because they were not supported by briefing showing why they were necessary or what specific harm would result from rejecting them.

The court treated several uncommented State Farm proposals as unopposed and granted those insertions. The court also denied any requested relief concerning unrelated issues as premature.

Disposition

The court GRANTS-IN-PART and DENIES-IN-PART the parties’ motion requesting modifications to the model protective order. The court ordered that a final protective order reflecting its rulings be entered as a separate docket entry. The order resolves Docket Nos. 55, 60, and 61.