United States District Court, S.D. Illinois
BRIAN FLYNN, GEORGE and KELLY BROWN, and MICHAEL KEITH, on behalf of themselves and all others similarly situated, Plaintiffs,
FCA U.S. LLC, f/k/a Chrysler Group LLC and HARMAN INTERNATIONAL INDUSTRIES, INC., Defendants.
G. WILKERSON United States Magistrate Judge.
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.
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.
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).
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.
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.
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.
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
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.
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.
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.
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. 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 ...