United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
Yim You United States Magistrate Judge
Ameriprise Financial Services, Inc. (“AFSI”) and
RiverSource Life Insurance Company's
“defendants”) have filed a Motion for Protective
Order (ECF #112). Plaintiff, the Estate of Marjory Gail
Thomas Osborn-Vincent (“the Estate”), opposes the
motion and alternatively proposes its own form of protective
order. The parties' proposed orders differ in several
material respects. For the reasons set forth below, the court
grants defendants' motion for protective order and adopts
defendant's form of protective order.
court may, for good cause, issue an order to protect a party
or person from annoyance, embarrassment, oppression, or undue
burden or expense, including . . . requiring that a trade
secret or other confidential research, development, or
commercial information not be revealed or be revealed only in
a specified way.” FRCP 26(c)(1)(G). The party seeking
protection must show specific prejudice or harm will result
unless the motion for protective order is granted.
Phillips ex rel. Estates of Byrd v. Gen. Motors
Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002). The party
must make this showing for each document it seeks to protect.
Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d
1122, 1130 (9th Cir. 2003). Once good cause has been shown,
“the court must balance the risk of disclosure to
competitors against the risk that a protective order will
impair prosecution or defense of the claims.”
Wilson v. Rolls-Royce Motor Cars, Inc., No. CIV.
93-1073-FR, 1994 WL 398347, at *1-2 (D. Or. July 22, 1994)
(citing Brown Bag Software v. Symantec Corp., 960
F.2d 1465, 1470 (9th Cir. 1992)).
courts have “broad discretion . . . to decide when a
protective order is appropriate and what degree of protection
is required.” Phillips, 307 F.3d at 1211
(citing Seattle Times Co. v. Rhinehart, 467 U.S. 20,
36 (1984)). And courts “routinely enter protective
orders to prevent the undue disclosure of commercially
sensitive information.” Cty. of Santa Clara v.
Astra USA, Inc., 588 F.3d 1237, 1249 (9th Cir. 2009),
rev'd on other grounds, Astra USA, Inc. v.
Santa Clara Cty., Cal., 563 U.S. 110 (2011).
action concerns the Estate's claims for breach of
contract, breach of the duty of good faith and fair dealing,
elder abuse, and fraud stemming from RiverSource's denial
of a claim for proceeds on a life insurance policy. Fourth
Am. Complaint ¶¶ 35-60, ECF #83. The parties have
conducted some discovery, including requesting and responding
to interrogatories and taking several depositions. The Estate
seeks the cost of insurance rate tables RiverSource uses when
calculating the monthly cost of insurance on a given life
insurance policy and RiverSource's internal manual used
to explain these calculations. See The Estate's
Request for Production No. 2, ECF #114-1; Dep. of Kristen
Muetzel at 265:12-21, ECF #114-2; August 27-28, 2018 Email
Exchange, ECF #114-3. The Estate contends this information is
essential to the prosecution of its case. Defendants do not
dispute this, but assert it is confidential business
information that warrants protection from their competitors
and the public.
business information is a form of property. Carpenter v.
United States, 484 U.S. 19, 26 (1987). The property
right is defined by the extent to which the owner protects
its interest from disclosure to others. Ruckelshaus v.
Monsanto Co., 467 U.S. 986, 1002 (1984) (discussing how
disclosure to competitors or to the public can extinguish the
property right). The extinguishing of a property right is a
type of harm that protective orders are meant to guard
against. See FRCP 26(c). Here, RiverSource declares
it has “invested significant time, research, and money
to develop” its internal insurance rate tables and
internal manual to ensure it can provide a competitive
product to consumers. Decl. of Kristie Muetzel
(“Muetzel Decl.”) ¶ 3, ECF #113. RiverSource
takes steps to prevent disclosure of this information to its
competitors and the public. Id. ¶ 4-5.
Disclosure of this information to competitors or the public
would harm RiverSource's competitive advantage in the
insurance industry. Id. ¶ 6. Thus, RiverSource
has established good cause to keep this information
proposed protective order is an almost verbatim copy of this
District's model Tier 1 protective order. Compare
U.S. District Court for the District of Oregon, Tier 1
(“Tier 1 PO”) with Defs.' Proposed
Protective Order, ECF #114-4. The only difference this court
could find is the addition of the words “and/or
proprietary” after the second instance of the word
“confidential” in the third paragraph, which
reads: “The parties, and third parties subpoenaed by
one of the parties, may designate as ‘Confidential'
documents, testimony, written responses, or other materials
produced in this case if they contain information that the
producing party has a good faith basis for asserting is
confidential [and/or proprietary] under the applicable legal
standards.” Tier 1 PO.
defendants' proposed protective order (1) provides a
process by which a producing party may designate information
as “confidential” to limit its use by the other
parties; (2) provides a procedure for challenging a
parties' designation of material as
“confidential”; (3) limits the use of designated
material in public filings; and (4) requires the return or
destruction of protected material at the end of litigation.
It does not prevent the discovery of any documents designated
as confidential; rather, it limits the parties' ability
to disclose and use them outside of this litigation. As such,
there is no “risk that a protective order will impair
prosecution or defense of the claims.” Wilson,
1994 WL 398347, at *1-*2.
Estate has proposed a form of two-tiered protective order.
These types of protective orders are necessary in actions
where sensitive information should not be disclosed, for
example, to in-house counsel involved in competitive decision
making. U.S. Steel Corp. v. United States, 730 F.2d
1465, 1468 (Fed. Cir. 1984). The Estate is not a competitor
of RiverSource with in-house counsel involved in competitive
decision making, nor vice versa. Therefore, a two-tiered
protective order is unnecessary. Otherwise, the Estate's
proposed protective order differs in one material respect. It
contains a provision excluding the rates actually charged
against the deceased's policy or modified endowment
contract from the protection of the order. Pl.'s Proposed
Protective Order ¶ 1, ECF #120-1. The Estate contends
these rates should not be confidential because the policy
expressly provides that the insurer “will send [the
insured] a report which shows . . . all charges since the
last report.” Resp. at 5, ECF #116 (quoting Insurance
Policy Excerpt). But a summary of charges is different than
the rates, formulas, and calculations used to generate the
charges. Adopting this provision would allow the Estate to
disclose confidential business information to defendants'
detriment, defeating the purpose of issuing a protective
reasons set forth above, the court grants defendant's
motion for protective order (ECF #112) and adopts
defendants' form of protective order (ECF #114-4). The