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Moore v. Ford Motor Co.

United States Court of Appeals, Fifth Circuit

June 20, 2014

RESSIE MOORE; ALFRED MOORE; BRIDGETTE JETT; ALMARIA LUCAS, Plaintiffs - Appellants
v.
FORD MOTOR COMPANY, Defendant - Appellee, VOLVO CAR CORPORATION, Intervenor - Appellee; MARGARITTO BONILLA; EVA MARIA BONILLA, Individually as Legal Representative of the Estate of David Bonilla and as Next Friend of Andy Bonilla, a Minor, Plaintiffs - Appellants
v.
FORD MOTOR COMPANY, Defendant - Appellee, VOLVO CAR CORPORATION, Intervenor - Appellee

Appeals from the United States District Court for the Eastern District of Texas.

For RESSIE MOORE, ALFRED MOORE, BRIDGETTE JETT, ALMARIA LUCAS, Plaintiffs - Appellants (13-40761): Clyde Talbot Turner, Esq., Turner & Associates, P.A., North Little Rock, AR; Jerry Manning White, Turner & Associates, P.A., North Little Rock, AR.

For FORD MOTOR COMPANY, Defendant - Appellee (13-40761): Adam Howard Charnes, Esq., Richard Donald Dietz, Chris William Haaf, Esq., Kilpatrick Townsend & Stockton, L.L.P., Winston Salem, NC; Michael W. Eady, Thompson, Coe, Cousins & Irons, L.L.P., Austin, TX; David Cyril Knapp, McDonald, Toole & Wiggins, P.A., Orlando, FL.

For VOLVO CAR CORPORATION, Intervenor - Appellee (13-40761): Deborah J. Bullion, Gascoyne & Bullion, P.C., Sugar Land, TX.

For MARGARITTO BONILLA, Plaintiff - Appellant (13-40774): Clyde Talbot Turner, Esq., Marie Elizabeth Francis, Esq., Timothy Joseph Giattina, Esq., Attorney, Jerry Manning White, Turner & Associates, P.A., North Little Rock, AR.

For EVA MARIA BONILLA, Individually as Legal Representative of the Estate of David Bonilla and as Next Friend of Andy Bonilla, a Minor, Plaintiff - Appellant (13-40774): Clyde Talbot Turner, Esq., Timothy Joseph Giattina, Esq., Attorney, Jerry Manning White, Turner & Associates, P.A., North Little Rock, AR.

For FORD MOTOR COMPANY, Defendant - Appellee (13-40774): Adam Howard Charnes, Esq., Richard Donald Dietz, Chris William Haaf, Esq., Kilpatrick Townsend & Stockton, L.L.P., Winston Salem, NC; Michael W. Eady, Thompson, Coe, Cousins & Irons, L.L.P., Austin, TX; David Cyril Knapp, McDonald, Toole & Wiggins, P.A., Orlando, FL.

For VOLVO CAR CORPORATION, Intervenor - Appellee (13-40774): Deborah J. Bullion, Gascoyne & Bullion, P.C., Sugar Land, TX.

Before STEWART, Chief Judge, and HIGGINBOTHAM and ELROD, Circuit Judges. JENNIFER WALKER ELROD, Circuit Judge, dissenting.

OPINION

Page 803

PATRICK E. HIGGINBOTHAM, Circuit Judge:

This is a proceeding to enforce agreed protective orders entered ten years ago. Pursuant to these orders, Ford Motor Company produced a number of Volvo Car Corporation documents that it designated as confidential. After objecting to the confidential status of these documents, plaintiffs distributed and used them in litigation against Ford competitors. Ford moved to protect these documents under the agreed protective orders. Rejecting a claim of waiver, the magistrate judge found the documents to be protected by the agreed orders. The district court upheld the magistrate judge. We AFFIRM.

I

Approximately a decade ago, the district court entered virtually identical agreed

Page 804

protective orders (" Protective Orders" ) in Moore v. Ford Motor Company and Bonilla v. Ford Motor Company . The underlying cases settled, but the parties were not required to return confidential documents.

The Protective Orders state, in pertinent part, that:

At any time after the delivery of documents designated " confidential," counsel for the receiving party may challenge the confidential designation of any document or transcript (or portion thereof) by providing written notice thereof to counsel for the opposing party. If the parties are unable to agree as to whether the confidential designation of discovery material is appropriate, the producing party shall have fifteen (15) days to move for protective order with regard to any discovery materials in dispute, and shall have the burden of establishing that any discovery materials in dispute are entitled to protection from unrestricted disclosure. If the producing party does not seek protection of such disputed discovery materials by filing an appropriate motion with this Court within fifteen (15) days, then the disputed material shall no longer be subject to protection as provided in this order. All documents or things which any party designates as " confidential" shall be accorded confidential status pursuant to the terms of this protective order until and unless the parties formally agree in writing to the contrary or determinations made by the Court as to confidential status.

The Protective Orders also provide that " the provisions of this Order shall continue to be binding, except with respect to those documents and information that become a matter of public record. This Court retains and shall have jurisdiction over the parties and the recipients of the Protected Documents for enforcement of the provisions of this Order following termination of this litigation."

After the Protective Orders issued, Ford produced approximately three and a half banker-boxes of Volvo materials,[1] which it designated as confidential. According to Ford, these materials were not produced at one time, but were instead produced intermittently over the course of discovery.

On May 11, 2004, plaintiffs' counsel emailed Ford, challenging the confidential status of Volvo documents relating to a presentation allegedly given to the National Highway Traffic Safety Administration, as well as to a European University and local civic groups. Ford responded on June 4, 2004, asking that plaintiffs' counsel provide the Bates Numbers for the disputed documents so that Ford could directly address plaintiffs' counsel's concerns. ...


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