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Flynn v. FCA U.S. LLC

United States District Court, S.D. Illinois

May 30, 2017

BRIAN FLYNN, GEORGE and KELLY BROWN, and MICHAEL KEITH, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
FCA U.S. LLC, f/k/a Chrysler Group LLC and HARMAN INTERNATIONAL INDUSTRIES, INC., Defendants.

          ORDER

          DONALD G. WILKERSON United States Magistrate Judge.

         This matter is before the Court on Defendant FCA U.S. LLC's Motion for Emergency Relief to Compel Corrective Action for, and Sanctions for, Violation of the Protective Order (Doc. 170) and its Supplemental Evidence in Support of its Motion for Sanctions and its Motion for Sanctions for Additional Violations (Doc. 178). For the reasons set forth below, its Motion for Emergency Relief (Doc. 170) is GRANTED IN PART and its Supplemental Motion for Sanctions for Additional Violations (Doc. 178) is DENIED.

         Relevant Background

         This is a proposed class action in which Plaintiffs assert that various models of Defendant FCA U.S. LLC's (“FCA US”) cars and trucks suffer from design defects that allow hackers to gain access to Defendant Harman International Industries, Inc.'s (“Harman”) “uConnect infotainment system.” Such vulnerability, Plaintiffs allege, allows hackers to gain access to, and take control of, vehicles' powertrain and safety related functions.

         On motion of the parties, the Court entered an Amended Protective Order on January 9, 2017 (Doc. 148). Said protective order provides that “[n]o documents, information, or things designated as ‘Confidential' or ‘Attorneys' Eyes Only' shall be filed with the Court, including that contained in pleadings, motions, briefs, declarations, or exhibits, except under seal.” The Order also directs that “[p]rovided that no ‘Confidential' information is disclosed, the parties may generally refer to documents designated as ‘Confidential' in pleadings, motions, briefs, affidavits, or exhibits filed with the Court, without the need to file such pleadings, motions, briefs, affidavits, or exhibits under seal” (Id. at p. 8).

         In FCA US's motion for emergency relief now before the Court, it asserts Plaintiffs violated provisions of the Amended Protective Order and revealed information culled from documents designated as “Confidential” in their public filing of a miscellaneous action to enforce a third-party subpoena filed in the United States District Court for the Northern District of California on April 24, 2017. FCA U.S. asks the Court for various relief due to Plaintiffs' alleged violation, including: (1) order Plaintiffs and their Counsel to withdraw their motion to compel non-party Cisco System, Inc.'s compliance with subpoena duces tecum and memorandum in support in the miscellaneous action; (2) order Plaintiffs to close the miscellaneous action and take any and all other actions necessary to remove FCA US's confidential information from the record; (3) close document discovery; (4) order the payment of attorney's fees and costs incurred by FCA U.S. in connection with Plaintiffs' filing of confidential information in the public record in the miscellaneous action; and (5) grant FCA U.S. all other appropriate relief.

         In response to FCA US's motion, Plaintiffs assert that the information deemed “Confidential” by FCA U.S. in its motion is not in fact confidential as it merely references background information that is publicly available. Plaintiffs also remark that they did not attach any confidential documents to their motion or memorandum in the miscellaneous action, but only referred to generic information from FCA U.S. documents that was not confidential. In support of their argument, Plaintiffs attached (and cited portions of) the deposition testimony of Laith Shina, a Chrysler witness. Plaintiffs also indicated that despite their belief that they in no way violated the Amended Protective Order, by the evening of April 27, 2017, the motion and memorandum in the miscellaneous action were filed under seal.

         Soon after Plaintiffs' filed their response to FCA US's motion, FCA U.S. filed a combined supplement to its motion and a motion for sanctions for additional violations (Doc. 178). In its supplemental motion, FCA U.S. asserts that Plaintiffs' filing of excerpts from Shina's deposition was yet another violation of the Protective Order as the time for FCA U.S. to designate the deposition testimony as “Confidential” had not yet passed.

         The Court allowed Plaintiffs to respond to FCA US' supplemental motion and said reply was filed on May 4, 2017 (Doc. 179). In their reply, Plaintiffs assert that the Protective Order provides a process for notifying the parties that a deposition contains confidential material in order to invoke the 20-day timeframe and FCA U.S. failed to comply with this process. Accordingly, Plaintiffs assert they had no indication that FCA U.S. was going to designate any portion of Shina's deposition testimony as confidential prior to their filing[1].

         The Court held a motion hearing in this matter on May 5, 2017. At the hearing, the Court conducted a thorough review of the information contained in Plaintiffs' miscellaneous filing in the Northern District of California and heard argument from both Plaintiffs and FCA U.S. regarding the documents. Generally, Plaintiffs maintained that the information contained in its filings were in the public domain and urged the Court to conduct its own internet search for said information. FCA U.S. pointed to confidential documents that contained the cited information and urged the Court to award costs associated with its enforcement of the Protective Order and asked the Court to cease discovery with respect to the production of additional documents.

         Discussion

         The first issue before the Court is whether Plaintiffs violated provisions of the Amended Protective Order by disclosing confidential information in their filings in the miscellaneous action pending in the Northern District of California and their filing and reference to portions of Laith Shina's deposition testimony in their response to FCA US's motion for emergency relief.

         With regard to Plaintiffs' miscellaneous action and its motion to compel and memorandum in support, the Court finds that portions of this filing contain information (and, on more than one occasion, quoted language), from documents designated as “Confidential” by FCA US. While the Court is mindful of Plaintiffs' argument that the information included in its filings is within the public domain, the Court finds said argument accurate only to a certain extent. Plaintiffs did not provide, and the Court was unable to find, public sources that conveyed all of the information FCA U.S. contends is “Confidential.” Thus, Plaintiffs' inclusion of said information in its motion and memorandum in the miscellaneous action was violative of the Protective Order to which all parties agreed. The Court notes, however, that the material at issue has been sealed and is no longer publicly available.

         The Court is not convinced that Plaintiffs' reference to and attachment of portions of Laith Shina's deposition testimony was violative of the terms of the Protective Order[2]. Although FCA U.S. is correct that a party may designate as “Confidential” portions of a deposition transcript within twenty days of receipt of the transcript, it seems counterintuitive to allow all deposition testimony of a producing party to be deemed “Confidential” during this time, particularly in light of paragraph 4(b) of the Protective Order. Although the Protective Order is admittedly unclear as to how paragraph 4(b) affects the twenty day “grace ...


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