Chapter 9 - § 9.4 • PROTECTIVE ORDERS LIMITING OR PROHIBITING USE IN OTHER CASES

• Jurisdiction: Colorado

§ 9.4 • PROTECTIVE ORDERS LIMITING OR PROHIBITING USE IN OTHER CASES

Courts recognize that some plaintiffs have a legitimate interest in exchanging and comparing the fruits of discovery with similarly situated plaintiffs. In United Nuclear Corp. v. Cranford Ins. Co. , the Tenth Circuit Court of Appeals stated that "'[w]here an appropriate modification of a protective order can place private litigants in a position they would otherwise reach only after repetition of another's discovery, such modification can be denied only where it would tangibly prejudice substantial rights of the party opposing modification.'"

➤ United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1428 (10th Cir. 1990) (quoting Wilk v. American Medical Ass'n, 635 F.2d 1295, 1299 (7th Cir. 1980)); see also Ward v. Ford Motor Co., 93 F.R.D. 579, 580 (D. Colo. 1982) (allowing the exchange of discovery information between lawyers in variously similar automotive product liability cases). But see Strough v. Gen. Motors LLC, No. 18-CV-03303-PAB-NRN, 2019 WL 2357306, at *2 (D. Colo. June 4, 2019) (Neureiter, M.J.) (denying motion to revise prior protective order to allow for sharing of discovery materials with potential future litigants in potential future cases: "The Court's objective is to get this case ready for trial promptly. Delays in discovery while the parties fight about whether documents can or cannot be shared with other lawyers who may seek to bring other cases in the future do not further the objective of getting this case ready for trial. It may actually cause delay in the production of documents as Defendants act more deliberately in deciding whether to produce or object to discovery, concerned that any material produced in discovery will be shared widely among the Plaintiffs' Bar across the country for no verifiable legitimate purpose.").

The general risk of collaborative sharing of information between litigants has not been held to establish, in its own right, good cause for a protective order under Rule 26(c). In this regard, "[t]he federal rules do not foreclose collaboration among litigants, and the court does not consider the possibility that plaintiff will share the results of discovery with any other litigant any part of defendant's showing of good cause to justify a protective order."

➤ Parsons v. General Motors Corp., 85 F.R.D. 724, 726 n. 1 (N.D. Ga. 1980); De La Torre v. Swift Transp. Co., No. 2:13-CV-1786 GEB, 2014 U.S. Dist. LEXIS 99002, 2014 WL 3695798, at *3

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