chevron-down Created with Sketch Beta.
July 31, 2019 Practice Points

Protective Orders Hinge on Whether the Burden Outweighs the Benefit

The more specifically and directly a party phrases its requests to produce information, the more likely the information will be discoverable under Rule 26(b)(1).

By Angela S. Fetcher and Tommy Staffieri

When addressing the validity of a protective order under Federal Rule of Civil Procedure 26(c), courts will judge each individual request by weighing the relevance of each request to the alleged claim, the extent of the burden associated with production, and the benefit gained from obtaining such information.

In Seaside Inland Transport v. Coastal Carriers, LLC, No. 2:17-cv-00143-SMJ, 2019 U.S. Dist. LEXIS 20980 (E.D. Wash. Feb. 8, 2019), Seaside Inland Transportation sued Coastal Carriers based on a breach of contract arising from their freight-brokerage agreement. Performance continued under the original agreement from 2003 until Coastal refused to renew the contract in 2017. A dispute arose over uncollected commission fees and freight charges based on the commission structure.

As a result of the suit, Seaside requested a variety of information from Coastal through its topics for a Rule 30(b)(6) deposition. Coastal sought a protective order under Fed. R. Civ. P. 26(c) to shield the production of information that it believed was unduly burdensome, non-proportional, or irrelevant.

In Seaside, as in other cases, the court’s protective order analysis separately weighed the relevance of each request, the scope of available knowledge, and the burden of production versus the benefit of receiving such information. Because this is a fact-specific inquiry, courts are likely to apply Rule 26(c) protective orders in varying degrees. The court looked at the proportionality of each proposed deposition topic before ultimately granting in part and denying in part Coastal’s Rule 26(c) request for a protective order.

The court protected Coastal from several deposition topics proposed by Seaside, including Coastal’s compensation history for all personnel, every instance Coastal sued or sought recovery from an agent or employee, and transaction history of over 780 commissions between Coastal and Seaside. Because the burden of production vastly outweighed any benefit received from obtaining this information, the Court entered a protective order preventing Seaside from questioning Coastal’s 30(b)(6) witness on these topics.

On the other hand, the court permitted topics that would likely lead to information that would benefit Seaside and would outweigh Costal Carrier’s burden. Such information included topics such as net revenues for the last 15 years and the functionality of specific software at issue in the case, which the court found were relevant to Seaside’s claims.

Seaside indicates that the more specifically and directly a party phrases its requests to produce information, the more likely the information will be discoverable under Rule 26(b)(1). Likewise, the application of Rule 26(c) by a party seeking a protective order will be enforced when the party establishes good cause. This is accomplished under Rule 26(c) by specifically detailing how the requested information will lead to “annoyance, embarrassment, oppression, or undue burden or expense.”

Angela S. Fetcher is a member of Stoll Keenon Ogden PLLC in Louisville, Kentucky and Tommy Staffieri is a 2021 J.D. Candidate at the University of Kentucky. 

Copyright © 2019, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).