Before we dive in today, I just want to apologize for not getting this post up yesterday. I’m in Boston, visiting my brand-new nephew, and so I’ve been a little preoccupied. So today’s post will be a quick one.
Every defense counsel in class actions has faced having to negotiate a protective order with the other side. Plaintiffs, who often wish to release documents to the press for maximum PR leverage, or to share documents with other attorneys to bank favors, will often push for free document-sharing provisions. Defendants, by contrast, often want to make sure that their proprietary documents remain proprietary. As a result, they will seek protective orders that prohibit widespread sharing of documents. Occasionally, plaintiffs will seek a provision that allows them to provide documents if they are subpoenaed. After all, they can’t stop another firm from subpoenaing them, can they?
Today’s case, Murr v. Midland National Life Insurance Co., 2011 U.S. Dist. LEXIS 82486 (C.D. Cal. Jul. 28, 2011), shows why robust protective orders are important to defendants. In it, plaintiff William Murr (represented by Blood, Hurst & O’Reardon) filed a class action against Midland National Life Insurance in the Northern District of Iowa, challenging its annuity contracts. Midland had previously defended a similar lawsuit brought by Robbins Geller Rudman & Dowd LLP. Rather than fight over the relevance of specific documents to his case, Murr served a subpoena on Robbins Geller to just get the documents produced to it. Midland (note, not Robbins Geller) moved to quash the subpoena.
The court granted the motion to quash, and its reasoning is instructive. It held that Murr’s request:
fails to take into account that his subpoena is unreasonably burdensome given that Murr may request the same documents being sought from Robbins Geller through discovery directed to Midland in the Murr Action, subject to normal discovery procedures and protections in place in his own action. Murr may request the documents directly from Midland without involving a third party that does not have the same interests as Midland in protecting the documents relating to its business practices and policyholders.
(Emphasis added.) While the court does not disclose what the protective order with Robbins Geller looked like, Midland likely did not agree to a simple "hand over if subpoenaed" provision. And cases like this show why it’s important for defendants to pay close attention to the provisions of protective orders. Given the opportunity, plaintiffs will simply subpoena each other to get information from previous lawsuits, whether or not it’s strictly relevant to their new claims. Robust protective orders can guard a defendant’s proprietary information, even from plaintiffs’ more inventive attempts to circumvent them.