40 Trial Lawyer • Winter 2024 protective orders, cannot help pull the wool from each other’s eyes because they are themselves bound. Sharing protective orders help to ensure a modicum of fairness in a system that we all know favors the goliaths of the world, with their often-infinite resources and cleverness (to put it more charitably than one otherwise might!). Sharing provisions ensure that litigants produce discovery completely in similarly situated cases and do not withhold discoverable documents from any given plaintiff. These provisions specifically indicate the plaintiff can share confidential discovery with the counsel of clients with present or future cases arising out of the same or similar set of facts, product, transactions and occurrences. We can insist upon sharing provisions, and we should. Sharing reduces the need for repetitive discovery disputes, which furthers judicial economy. See, e.g., Ward v. Ford Motor Co., 93 FRD 579, 580 (D Colo 1982) (“Each plaintiff should not have to undertake to discover anew the basic evidence that other plaintiffs have uncovered.”). If you want a sharing provision and the defendant won’t agree to it, ask the court for what you want. That’s what judges are for! And, rest assured, the defense has no compunction in asking the court for what it wants, which is blanket, unbalanced protection. The acceptable terms of a proposed protective order often become the focus of a Motion to Compel followed by a Motion for Protective Order or some similar plating of the discovery dispute when you find yourselves at loggerheads. You can support your motion with your own proposed protective order terms which include a generous sharing provision and let the court decide whether it should be stricken, included in its entirety or perhaps narrowed in some way that allows for sharing but with a more tightly delineated audience (e.g., other persons injured by the make of vehicle within a specific model year range). Whatever the outcome, you won’t be any worse off than you were when they initially said “we don’t intend to give you anything until you sign this!” The courts need to hear from plaintiffs that we aren’t actually interested in disseminating X Corporation’s secrets without compunction, but instead are concerned with leveling the playing field, increasing fairness to litigants and in upholding the principles of openness in our courts that serve to foster human health and safety. While there is not a lot of Oregon case law on point, the Ninth Circuit has spoken as follows: “This court strongly favors access to discovery materials to meet the needs of parties engaged in collateral litigation. Allowing the fruits of one litigation to facilitate preparation in other cases advances the interests of judicial economy by avoiding the wasteful duplication of discovery.” Foltz, 331 F3d 1122, 1131 (9th Cir. 2003). Pushing back is not always the easiest path, but it is often the right path. Let us go forth and stand up for our clients while simultaneously advocating for transparency for the benefit of all, in furtherance of fairness and justice. Kimberly Weingart specializes in thirdparty workplace injury claims, products liability cases, dram shop claims, and pedestrian and bicyclist injuries. She contributes to OTLA Guardians at the Sustaining Member level. She is a partner in the firm of Pickett Dummigan Weingart LLP, located at 210 SW Morrison St., 4th Floor, Portland, OR 97204. She can be reached at [email protected] or 503-223-7770. Protective Orders Continued from p 39 You can support your motion with your own proposed protective order terms...
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