Chairez v. AW Distributing, Inc

Background

Natalie A. Chairez and Samantha G. Chairez brought a products-liability action after allegedly being injured in a car crash caused by a driver who was intoxicated from inhaling gas from Ultra Duster. The defendants include AW Distributing, Inc. and several Walmart entities, among others. The discovery dispute concerned Walmart’s redactions and documents produced in the related Kelley litigation.

Walmart moved for a protective order allowing it to withhold or redact nonrelevant attachments and information it characterized as privileged, legally protected, personally identifiable, commercially sensitive, or trade-secret information. Walmart had already made unilateral redactions in its discovery productions. The plaintiffs objected, arguing that Walmart had not properly met and conferred before filing its motion and that the redactions improperly removed material from responsive documents.

The plaintiffs also moved to compel Walmart to produce 4,141 documents they contended Walmart had produced in Kelley but had not produced in this case. They also sought unredacted versions of documents and sanctions. Walmart disputed the plaintiffs’ method of identifying missing documents and stated that it had reviewed the documents and determined that some were duplicates, unrelated, already produced, from another lawsuit, or otherwise not responsive; Walmart stated that 204 documents would be produced.

Protective-order ruling

The court explained that a party responding to discovery may not unilaterally redact responsive information. Instead, the party must object to the discovery request or seek a protective order. The court found that Walmart’s existing protective order authorized redactions for privilege, but not the redactions Walmart described as confidential, proprietary, commercially sensitive, or trade-secret information.

The court nevertheless granted, as modified, Walmart’s motion for a protective order. It allowed Walmart to redact commercially sensitive and trade-secret information from otherwise responsive documents. For each redacted document, Walmart must submit an unredacted copy to the court for private review and provide a short explanation of why the redacted information is a trade secret or otherwise commercially sensitive. The court stated that this process was intended to ensure that Walmart withheld only protected trade-secret information.

Walmart was required to re-evaluate its redactions in the non-spreadsheet documents and remove redactions that did not comply with the order by March 17, 2023. By March 24, 2023, Walmart had to submit to the court the original and redacted versions of documents it continued to redact, along with a table identifying the redactions and explaining their bases. The parties agreed that the spreadsheet redactions were not then at issue, although the plaintiffs’ counsel said the plaintiffs might later seek some portions of those files.

Because Walmart had made the redactions without court authorization and thereby created the dispute, the court declined to award Walmart costs or attorney’s fees. The court also found that the plaintiffs’ response to the unilateral redactions was substantially justified.

Motion to compel

The court stated that the portion of the plaintiffs’ motion seeking unredacted copies was denied as moot because the protective-order ruling addressed how the redactions would be handled. The court then interpreted its earlier order concerning Request for Production 34, which sought documents Walmart had produced in Kelley.

The court clarified that “related to Ultra Duster” included documents about Ultra Duster and documents about canned-air products generally, because Ultra Duster is a canned-air product. It did not include documents about other specific products that were not Ultra Duster. The relevant time period was 2008 through 2018, subject to an exception for complaints, injuries, or incidents specifically related to Ultra Duster that the court had previously identified.

The court ordered Walmart to produce documents from Kelley that met those criteria. If qualifying Kelley documents originated in the Grieco litigation, Walmart also had to produce them. The fact that a document came from another lawsuit did not remove it from the scope of Request for Production 34. Walmart could redact information about other products from otherwise responsive documents if it briefly explained the basis for the redaction and submitted the materials for private court review.

The court ordered Walmart to produce any remaining qualifying documents by March 17, 2023, apply the criteria to future Kelley productions, and continue disclosing qualifying Kelley documents until fact discovery closed. The order states that the plaintiffs’ motion to compel was “GRANTED IN PART AND DENIED IN PART.”

Disposition

The court granted, as modified, Walmart’s motion for a protective order and granted in part and denied in part the plaintiffs’ motion to compel. Judge John F. Docherty entered the order as a United States Magistrate Judge.