Case 3:02-cv-01642-B-NLS Document 84 Filed 03/18/08 PageID.650 Page 1 of 9

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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HAROLD J. PHILLIPS and GEORG-ANNE )
PHILLIPS,
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Plaintiffs,
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and
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LEROY HAEGER, KORI D. HALEY, et al., )
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Intervening Plaintiffs,
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v.
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THE GOODYEAR TIRE & RUBBER
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COMPANY, an Ohio Corporation,
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Defendant.

CASE NO: 02 CV 1642 B (NLS)
ORDER DENYING DEFENDANT’S
OBJECTIONS TO MAGISTRATE
JUDGE’S ORDER DENYING AS
MOOT INTERVENORS’ MOTION
TO MODIFY PROTECTIVE
ORDER; AND, IN THE
ALTERNATIVE ONLY, DENYING
DEFENDANT’S OBJECTIONS TO
MAGISTRATE JUDGE’S ORDER
GRANTING INTERVENORS’
MOTION TO MODIFY
PROTECTIVE ORDER TO
REMOVE CONFIDENTIALITY
COVERAGE AS TO CERTAIN
TESTIMONY BY KIM COX
[Docket Nos. 27-2, 65, & 78]

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In October 2007, the Court permitted Intervening Plaintiffs in collateral

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litigation to intervene in this closed case for the purpose of seeking a modification of

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the June 2003 Protective Order pertaining to a deposition of an employee of

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Defendant Goodyear Tire & Rubber Company.1 On January 28, 2008, the Magistrate

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The moving parties include Leroy Haeger (D. Arizona), Kori Haley (Arizona state
court), Margaret Bogaert (Arizona state court), Billy Woods (Alabama state court),
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Joseph Anton (S.D. Texas), and John Schalmo (Florida state court). Hereinafter
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Judge denied as moot the motion to modify the Protective Order (Sealed Doc. No. 65).

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Goodyear filed timely objections to the Magistrate Judge’s findings and conclusions

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that the June 2003 deposition was not covered by the Protective Order and that no

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good cause existed for its continued protection. Intervening Plaintiffs filed a response

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and Defendant Goodyear filed a reply brief.
Standard of Review

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When a party objects to a magistrate judge’s non-dispositive order, the district

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court may set aside or modify any portion of that is “clearly erroneous or contrary to

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law.” Fed. R. Civ. P. 72(a); Maisonville v. F2 Am., Inc., 902 F.2d 746, 747 (9th Cir.

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1990).
Burden of Proof

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When an intervening party challenges the contention that discovery documents

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belong under seal, “the collateral litigant must demonstrate the relevance of the

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protected discovery to the collateral proceedings and its general discoverability

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therein.” Foltz v. State Farm Mutual Auto. Ins. Co., 331 F.3d 1122, 1132 (9th Cir.

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2003).

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Once relevance has been shown, “the district court must require [the opposing

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party] to make an actual showing of good cause for their continuing protection under

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Federal Rule of Civil Procedure 26(c).” Foltz, 331 F.3d at 1131; Beckman Indus., Inc.

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v. Int’al Ins. Co., 966 F.2d 470, 475-76 (9th Cir. 1992) (adopting Rule 26(c) approach

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that places burden on the party opposing modification to show “good cause” for

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continued protection).

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In addition, the court “must weigh the countervailing reliance interest of the

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party opposing modification against the policy of avoiding duplicative discovery.”

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Foltz, 331 F.3d at 1133.

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Factual Background
In 2002, Plaintiffs Harold and Georg-Anne Phillips filed this tort action against
Defendant Goodyear. They alleged personal injuries and property damages resulting

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from an accident when the Goodyear “G159" Unisteel tire’s tread separated, causing a

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loss of control of their motor home. Plaintiffs alleged the tire was defective and that

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Goodyear knew this model tire was not safe for motor homes.

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On June 19, 2003, Plaintiffs commenced a deposition of a Goodyear employee,

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Kim Cox. During that deposition, Cox allegedly testified that the G159 tire was

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defective for use on a motor home or some similar statement or opinion. At that point,

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the deposition was interrupted and the parties discussed settlement. The court reporter

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had her stenographer’s notes of the incomplete deposition, but never made a transcript.

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A few days before the Cox deposition commenced, the parties stipulated to a

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Protective Order to govern the production of “documents and information that

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Goodyear believes to be proprietary and confidential.” Protective Order at p. 1, lines

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19-20 (filed June 16, 2003). By the terms of the Protective Order, the attorney for the

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Plaintiffs, Guy Ricciardulli, Esq., was prohibited from communicating in any manner

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information contained in “designated documents” because the information was solely

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for use in this case. Id. p.3, § II, ¶ 1, lines 10-11. Deposition testimony was included.

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Id. p. 4, § II, ¶ 3. The Protective Order further provided that Goodyear could destroy

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confidential documents sixty days after the case concluded. Id. p. 8, § II, ¶ 11.

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After proceeding to mediation, the Phillips case was settled and dismissed in
October 2003. [# 24]
In the interim, Goodyear’s attorney, John McCormick, Esq., contacted the court

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reporter and asked her to send her “original and all copies of [her] notes and

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transcription” of the Cox deposition for destruction. McCormick Decl. Ex. B (letter

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dated August 19, 2003). Ricciardulli signed that letter as “agreed to per stipulation.”

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Id. The court reporter complied and sent the notes and exhibits of the deposition to

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McCormick. She confirmed that the Cox deposition had not been transcribed.

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McCormick destroyed the reporter’s notes. None of the notes or oral testimony from

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the deposition was ever designated as confidential information to be included within

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the Protective Order. See Protective Order p.1, § I, ¶ A, B & p.3-4, § II, ¶ 1, 3.

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Some years later, Timothy Casey, Esq., an attorney for Plaintiffs in a District of

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Arizona action that is based upon allegations that the same model of tire was defective

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for use in a motor home, contacted Ricciardulli. Ricciardulli allegedly told Casey that

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Cox had testified in his deposition that Goodyear’s tire was defective when used on

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motor homes.
Upon learning of the conversation, Goodyear sought sanctions for contempt

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against Ricciardulli for disclosing confidential information in violation of the

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Protective Order.2 Soon thereafter, the plaintiffs in five collateral litigations against

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Goodyear sought leave to intervene for the purpose of modifying the Protective Order

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relative to Cox’s alleged statement that the model tire was defective when used on

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motor homes.
The Magistrate Judge, after briefing and oral argument, entered the Order

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which is the subject of Goodyear’s objections before this Court.
Summary of Conclusions

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1. The Magistrate Court correctly interpreted the Protective Order regarding

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Goodyear’s obligation to designate Cox’s deposition testimony as confidential.

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Goodyear failed to present evidence that it certified all or any part of Cox’s

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untranscribed and unfinished testimony as “proprietary and confidential.”
2. As to the alternative holding, the Court affirms the Magistrate Court’s

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alternative Order to modify the Protective Order to remove from the Protective Order

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Cox’s deposition testimony regarding the fitness or safety of the G159 tire for use on

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motor homes, including any witness to or evidence of such testimony by Cox.

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///

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///

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The Magistrate Judge issued a Report and Recommendation on Goodyear’s
motion for sanctions for contempt against Ricciardulli. The Court today issues a separate
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Analysis

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1. Confidential Matters Covered by Protective Order Must Be Designated

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The Court affirms the primary holding of the Magistrate Court’s Order that

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interpreted the scope and duties of Goodyear under its Protective Order. Jeff D. v.

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Andrus, 899 F.2d 753, 759 (9th Cir. 1989) (interpretation of terms of stipulation

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between parties is subject to de novo review). Because Goodyear drafted the

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Protective Order to exempt documents from the public record, the Court construes the

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terms narrowly so as to enforce the general presumption of public access. Olympic

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Refining Co. v. Carter, 332 F.2d 260, 264 (9th Cir. 1964) (“In the federal judicial

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system trial and pretrial proceedings are ordinarily to be conducted in public.”).

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While it is true that the deposition was not transcribed to permit the legend in red ink

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contemplated by § II, ¶ 3 of the Protective Order, Goodyear has not provided evidence

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of any stipulation or certification that the content of the Cox deposition must not be

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divulged.3 As the Magistrate Court observed, Goodyear bears the hardship of its

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decision to destroy not only the court reporter’s notes but any evidence, if any existed,

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that the parties had stipulated that it be designated as “confidential.” Ricciardulli

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denies any such stipulation was made.

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2. No Good Cause to Continue Protection of Cox Deposition on Defective Tire

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The Court affirms the Magistrate Court’s alternative ruling that the Protective

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Order can be modified to allow the Intervening Plaintiffs access to Cox’s alleged

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testimony that the G159 tire is defective when used on motor homes. Olympic

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Refining, 332 F.2d at 264 (protective orders are “subject to modification to meet the

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McCormick, counsel for Goodyear, did obtain Ricciardulli’s stipulation that the
court reporter return her notes to him for destruction. Ex. to McCormick Decl. In
Goodyear’s Opposition to Intervenors’ Motion to Modify Protective Order at 3, it states:
“Pursuant to Federal Rule 30(f)(2), the parties to a matter may agree to relieve the court
reporter of his/her responsibility for retaining notes of the deposition transcript. That is
exactly what occurred here.” No suggestion is made by Goodyear in this record that the
notes were certified as “confidential and proprietary” as described in the Protective Order.

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reasonable needs of other parties in other litigation”).
The Intervening Plaintiffs have met their initial burden to show that Cox’s

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testimony is relevant to their collateral lawsuits. Foltz, 331 F.3d at 1132. The

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pending lawsuits allege that the same Goodyear tire model is defective when used on

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motor homes. This information is highly relevant. It is also likely to be discoverable,

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either as a possible admission by Goodyear or, if there is contrary testimony at trial, as

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impeachment. Id. Certainly such discovery would have an effect of reducing

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necessary pre-trial discovery in the collateral litigation.
The Magistrate Court correctly held that Goodyear had not met its burden to

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show good cause why the Cox deposition should be sealed. All of the important

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public policies favor transparency. See generally Foltz, 331 F.3d at 1131-33 (citing

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Deford v. Schmid Prods. Co., 120 F.R.D. 648, 654 (D. MD. 1987) (sharing discovery

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“particularly appropriate” when multiple plaintiffs assert same wrong against national

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manufacturer of a consumer product)).
First, if the Phillips case had been tried to a jury, Cox’s alleged testimony

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potentially would have been admissible in open court, either as a possible admission

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that the tire is defective for use on motor homes, or if he testified in a contradictory

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manner, for impeachment purposes. The availability of that testimony should not be

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any different when the attorney has destroyed the written record than if it had been

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admitted on the record during a public trial.4
Second, if the Court were to continue to protect Cox’s alleged opinion, it would

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create a potential for subornation of inconsistent testimony by Cox, which could not

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be illuminated by potentially impeaching evidence from his June 2003 deposition.

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Moreover, though the parties did not clearly establish such documents would be
made available to the public, the federal statutes and regulations on transportation safety
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U.S.C. § 30118(c)(1); 49 C.F.R. § 576. The Court discerns no reason why a failure to
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comply with that statute should be grounds to conceal the report of a defect in later
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That possibility of mischief is not in the interest of justice in a court of law and does

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not commend protecting the information.

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Third, Goodyear has not identified any public policy that supports the

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perpetuation of secrecy of a Goodyear employee’s testimony concerning a possibly

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defective tire in certain usages. Nothing commends the concealment from a trier of

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fact of evidence bearing on the issue of defect in suits for personal injury to other

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members of the public. It would be repugnant to the public policy of protecting the

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health and safety of the public.

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Finally, “the collateral courts may freely control the discovery processes” as to

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whether the material requires protection in those proceedings. Foltz, 331 F.3d at

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1132-33; Olympic Refining Co. v. Carter, 332 F.2d 260, 265-66 (9th Cir. 1964)

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(district court can control the right of access, but is not authorized “to protect trade

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secret and sensitive competitive information from such disclosure as is relevant to the

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subject matter involved in a pending litigation” because other litigants in similar cases

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are “entitled to know” what the same defendant said about the same matter) (emphasis

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added). For example, to the extent that Cox’s testimony dealt with any proprietary or

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trade secret information regarding claims handling, the issue of admissibility might be

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a closer question, but this Order is limited to testimony, if any, given by Cox regarding

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possible defect in the design or manufacture of the “G159" Unisteel tire when used

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with certain motor homes. Beckman, 966 F.2d at 475-76. Here, the Order does not

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concern technical, patent, or financial information but only the alleged defect of the

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tire under certain usage conditions.

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3. Miscellaneous Matters

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The Court rejects Goodyear’s remaining objections. 28 U.S.C. § 636 (b)(3) (a

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magistrate judge may be assigned additional duties).
(a) Dismissal of Intervening Plaintiff Anton
In December 2007, Intervening Plaintiff Anton electronically filed a document
entitled “notice of settlement and stipulation to dismiss the action between settled

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parties.” That document states that Anton and Goodyear agreed to a form of dismissal

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order “which accompanies this Stipulation.” However, there was no such attachment.

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Although court staff contacted Anton’s counsel on four occasions to request a

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proposed order for the Court to sign, Anton has not submitted a proposed order.

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Accordingly, on or before March 28, 2008, Anton shall submit a proposed order of

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dismissal to the undersigned’s official email address,5 preferably in Word Perfect

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format, in compliance with this Court’s Electronic Case Filing Administrative Policies

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and Procedures § 2(h).
(b) Sealed Documents

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As a final housekeeping matter, the Magistrate Judge had permitted the parties

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to file certain motions, declarations, and exhibits under seal during the proceedings on

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the merits of the motions. [# 29] Because Goodyear stated that it would file

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objections, the Magistrate Judge ordered the relevant documents to remain sealed

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pending review by this Court. [# 67] The Magistrate Judge also sealed the transcript

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of the argument on the motions and her Orders. [# 69] The Court maintained the seal

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on the underlying documents pending its review. [# 75]
As the Court has completed its review, these documents need not be sealed any

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longer. Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006).

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The documents contain the arguments of counsel, declarations by attorneys concerning

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their memory as to the scope of the protective order, and factual recitations of

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conversations regarding allegations of the topics on which Cox may or may not have

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testified at his May 2003 deposition, but they do not contain confidential information.

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Accordingly, the Court unseals those motions, exhibits, declarations, transcript, and

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orders.

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efile_brewster@casd.uscourts.gov

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Conclusion

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1. The Court denies Defendant’s objections to the Magistrate Judge’s Order

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Denying as Moot Intervenors’ Motion to Modify the Protective Order. [# 27-2, 65 &

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78]

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2. The Court removes the seal from Docket Numbers 27, 37, 45, 48, 51, 53, 65,
68 and the transcript of the January 11, 2008 hearing.
3. Intervening Plaintiff Anton shall submit a proposed order of dismissal by
March 28, 2008.
IT IS SO ORDERED.
DATED: March 18, 2008

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Hon. Rudi M. Brewster
United States Senior District Judge

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cc: all counsel
Magistrate Judge Stormes

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