The Center for Auto Safety (CAS) intervened into a wrongful death suit against Goodyear arising from defects in its G159 tire. The Court granted CAS’s motion to unseal a large portion of the records that had been previously subject to a protective order, in that case and in several other similar cases.
“In the course of the ruling adopting the Protective Order, the Court found that ‘Goodyear has a legitimate interest in keeping its trade secrets and other confidential research, development and commercial information confidential from business competitors.’ The Court did not find that any of the information that Goodyear sought to protect was in fact a trade secret or commercially sensitive information. The plaintiffs did not object to the proposed protective order, so specific findings on that point were unnecessary.”
Protective orders were entered at Goodyear’s initiative in each case arising from the failure of a G159 tire in which Goodyear disclosed allegedly ‘confidential, proprietary technical and business information’. “The protective order in this case, and all of the protective orders in the other G159 cases from which the parties collected information in discovery, are ‘blanket’ protective orders. A blanket protective order is entered without requiring the proponent of confidentiality to show that specific discovery documents contain information that would satisfy the ‘good cause’ standard of Rule 26(c). Though the parties may stipulate to a ‘blanket’ protective order without a particularized showing of good cause, they cannot rely on such an order to hold records in confidence indefinitely.”
“The interests of comity do not call for this Court to defer to the other courts on issues concerning the merits of the protective orders. The orders were virtually all entered by agreement or without opposition, as opposed to being entered after an adversarial proceeding…. The interests of comity do not require this Court to send the litigants back to the issuing courts to seek modification, either. Goodyear is the only party to any of the cases that has a real stake in the outcome. All of the orders were entered at Goodyear’s request, on Goodyear’s template, to protect information disclosed by Goodyear. Requiring CAS to seek modification of each protective order in the jurisdiction in which it was entered would create an unreasonable burden. All of the underlying cases except Haeger I are closed, so sending this litigation to the courts that entered the orders would burden them, too, by requiring them to reopen their cases.”
“Goodyear’s legitimate need for confidentiality of the adjustment information relating to the G159 tire is reduced substantially, if not entirely eliminated, by the circumstances surrounding the tire. As noted in the Findings of Fact, the value of adjustment data for Goodyear’s competitors lies in its use as a marketing tool. Normally Goodyear would have the right to keep the data away from the competitors for that reason. But when the data could be interpreted to suggest that a product is dangerous, as it can here, non-disclosure becomes damage control, and the interest being protected is not competitive advantage but rather avoiding bad publicity and potential liability. That observation applies especially to the lists of personal injury and property damage claims and the reports concerning those claims. Goodyear characterizes that information as ‘customer use data’ or ‘warranty data’ or ‘marketplace performance data.’ The plaintiffs would describe it as evidence of the number of people killed or injured by a defective tire.
“Goodyear’s need for confidentiality of information, whether or not directly related to the G159 tire, weighs less heavily than it otherwise might because of the breadth and lack of specificity of Goodyear’s confidentiality claim. As discussed generally in the Findings of Fact, Goodyear has demonstrated how the disclosure of various kinds of information can be competitively harmful. It has also shown which documents contain those kinds of information, though in some instances (particularly transcripts and court filings) it has not specified what kind of information appears where in the document. But what Goodyear has not done, anywhere, is to explain exactly how it stands to be harmed by the release of any specific identifiable document or piece of information. For example, Goodyear has not identified anything about its tire testing procedure that is proprietary or unique. In that sense Goodyear has failed to particularize its showing concerning its need for confidentiality. Goodyear’s need for confidentiality was recently diminished further by the decision of NHTSA to deny Goodyear’s request for confidential treatment of [plaintiff counsel’s] submission. Mr. Kurtz’s submission includes much of the information, and many of the documents, for which Goodyear is claiming a right of confidentiality. As to that information and those documents, the proverbial cat is out of the bag. Goodyear’s need to maintain the confidentiality of the information or materials produced pursuant to the protective order does not come close to outweighing the public’s need for access (through CAS) with respect to information that relates specifically to the G159 tire. That information – primarily concerning the tire’s design, its testing, the decision to market it for use on motor homes, and the adjustment data generated by consumer experience with it – should be made public because it relates to and reveals a substantial potential risk to public health or safety. Moreover, by comparing the information that was disclosed in different cases, the public will be able to judge for itself whether the misuse of protective orders enabled the misconduct described by Judge Silver.* Goodyear’s need to maintain the confidentiality of the information or materials produced pursuant to the protective order does not outweigh the public’s need for access (through CAS) with respect to information concerning Goodyear’s internal policies and procedures, and its interactions with NHTSA. Disclosure of that information is necessary to enable the public to understand G159-specific information, such as the adjustment data. The information will also help the public understand how and why this happened at Goodyear, and what measures (if any) should be taken to ensure it does not happen again.”
Estate of Haeger v. Goodyear Tire & Rubber Co., No.2013-052753 (Ariz. Super. Ct. Maricopa County April 3, 2018) (bold added) (italics in original)
* In Haeger I, Judge Silver found that Goodyear and its attorneys “made repeated, deliberate decisions . . . to delay the production of relevant information, make misleading and false in-court statements, and conceal relevant documents,” for the purpose of avoiding liability to the Haegers based on the failure of a G159 tire. Haeger v. Goodyear Tire and Rubber Co., 906 F.Supp.2d 938 (2012). The Ninth Circuit Court of Appeals upheld Judge Silver’s findings, including her finding that Goodyear “participated directly in the discovery fraud.” Haeger v. Goodyear Tire and Rubber Company, 813 F.3d 1233, 1243-1246 (9th Cir. 2016), reversed on other grounds 137 S.Ct. 1178 (2017).