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Jordan v. United States

United States District Court, S.D. California

May 22, 2017

Madison-Rae Jordan, individually and as next friend of D.M., a minor, Plaintiff,
v.
United States of America, Defendant.

          ORDER REGARDING JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE NO. 1, GRANTING DEFENDANT'S MOTION FOR PROTECTIVE ORDER [DKT. NO. 48]

          Hon. Nita L. Stormes United States Magistrate Judge.

         Plaintiff Madison-Rae Jordan filed this case individually and also as next friend of her son D.M., a minor (Plaintiff). She alleges a medical malpractice case against defendant United States of America based on the negligence of physicians at the Naval Hospital Camp Pendleton and the Naval Medical Center San Diego. In this discovery dispute the parties present a narrow issue for determination: whether a protective order should issue regarding the electronic Excel file of the USA's economic expert's report regarding the present value of future damages.

         For the following reasons, the court GRANTS Defendant's motion for protective order of the Excel file.

         Relevant Background.

         Plaintiff deposed Defendant's economic expert, Heather Xitco, a forensic accountant and owner of Dolan Xitco Consulting Group. Xitco Decl. ¶ 1. Ms. Xitco used an Excel spreadsheet to formulate and determine the present value loss figures in this case. Xitco Decl. ¶ 3. During her deposition Ms. Xitco explained that she determined the present value of various components of the parties' life care plans by using the present value formula function in Excel. Jt. Mtn., p.2. Then she input the cost of the item, the time frame the item required, and the net discount rate. Id.

         The parties agree that Defendant will produce the electronic Excel file after certain metadata is removed. Defendant seeks a protective order over only the electronic file, based on its expert's belief that the electronic file contains proprietary components. Specifically, Ms. Xitco asserts that the “unique attributes [of the report]…were created solely for my firms [sic] benefit and …brand: font style, font size, print layout, formatting, schedule organization, schedule linking.” Xitco Decl. ¶ 4. She believes that producing an electronic copy of this information could cause economic harm to her business because “[p]roviding the information would allow a competitor to copy our ‘brand' and would be detrimental to our practice.” Xitco Decl. ¶ 5.

         There is no dispute that a hard copy of the file or a hard copy of the list of formulas used for the calculations can be publicly available and not subject to a protective order. See Ex. 3. The only issue for the court to decide is whether the public-whether it be a reporter or future or collateral litigants-has a right to an electronic copy of the expert's Excel file. To answer that question, the court must determine that either Plaintiff or her counsel has standing to assert that right on behalf of the public, and that a hard copy of the Excel file is insufficient to satisfy any right that may exist.

         Discussion.

         1. Legal Standard Regarding Protective Orders.

         A court may issue a protective order “requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way[.]” Fed.R.Civ.P. 26(c)(1)(G). The burden of proof for a protective order is on the moving party to make a clear showing of particular and specific need for the protective order. See Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975).[1] Here, Defendant asserts that its expert's Excel file contains unique attributes that comprise part of her company's brand, and that the concern is a competitor could easily copy the Excel file and the brand, which would cause economic harm to her business. See Xitco Declaration.

         The court finds that this is an adequate assertion of a trade secret or other confidential research, development, or commercial information for the purpose of discovery. Absent one of Plaintiff's competing concerns addressed below, the electronic file should be produced subject to a protective order.

         2. Access to Judicial Records.

         Plaintiff argues that the presumption of a public right to access and inspect judicial records is paramount here. In support, she cites to a Ninth Circuit case that says the “right is justified by the interest of citizens in keeping a watchful eye on the workings of public agencies.” Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (internal quotations omitted). The case goes on to identify two categories of documents to which the public presumption does not apply: “grand jury transcripts and warrant materials in the midst of a pre-indictment investigation.” Id.

         Here, Plaintiff asserts a public interest over the electronic record of an expert's private business information. The business information at stake-namely, the expert's brand-is not an official record that displays the workings of a government agency. While Kamakana affirmed the unsealing of Honolulu's city and county police records that were sealed in an underlying whistleblower case, it noted that the public's ...


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