Schwartz v. The Town of Crawford

Background

The plaintiffs served a subpoena on non-party recipients seeking documents. The court had previously addressed the potential scope of a confidentiality and protective order governing the court-ordered production. A protective order is a court order that limits or governs disclosure of discovery to protect against burdens or other harm.

The non-party recipients proposed provisions requiring the plaintiffs to indemnify, hold harmless, and reimburse them for costs related to possible claims, as well as a requirement that the plaintiffs post a $250,000 bond. In its earlier order, the court found no basis for those provisions but gave the non-party recipients a final opportunity to support them with case citations and examples involving similarly situated subpoena recipients.

Court’s Analysis

The court applied Federal Rule of Civil Procedure 26(c), which allows a court to issue a protective order upon a showing of good cause. The party seeking protection bears the burden of showing good cause, and the court has broad discretion to decide whether protection is appropriate and what protection is required.

The court found that the non-party recipients’ April 8, 2024 submission did not cite any comparable instance in which a court required or approved similar indemnification or bond provisions. The recipients referred generally to possible consequences and liability but did not show that similarly situated subpoena recipients had faced liability for complying with court orders. They also did not explain why the planned attorneys’-eyes-only protections would not address their concerns. The court further noted that the recipients had not addressed the court’s earlier observations about possible defenses and the potential culpability of other people if the confidentiality and protective order were violated.

The court therefore found that the non-party recipients had not met their burden to establish good cause for including the requested indemnification and bond provisions.

Rulings

The court stated that it would enter a confidentiality and protective order consistent with the parameters set in its earlier order, which did not include the requested indemnification and bond provisions.

The court did not issue new rulings on objections to the scope of the court-ordered production because those objections were untimely. It also did not treat the April 8 letter as a request for cost shifting. The letter only reserved the recipients’ possible right to seek reimbursement later, and the court said it would consider such an application if and when it was filed.

Judge Andrew E. Krause stated that the confidentiality and protective order would be docketed separately and set April 17, 2024, as the deadline for the non-party recipients to produce documents responsive to the plaintiffs’ subpoena.