Hartman v. Remington Arms Co.

ORDER SCOTT O. WRIGHT, Senior District Judge. The Court has completed its review of the documents submitted in camera and the briefs concerning plaintiff’s original motion to compel production of documents. This issue came before the Court on remand from the Eighth Circuit Court of Appeals. In re Remington Arms Co., Inc., 952 F.2d 1029 (8th Cir.1991). After review of the matter, the Court rules that Remington Arms Co., Inc. shall produce the documents specified in Appendix A under the safeguard of a protective order. Defendant Remington Arms Co., Inc. presents two arguments for the Court to find that it should not be required to produce the documents. First, Remington argues that the documents should not be disclosed, or should only be disclosed under the most restrictive of protective orders, because: (1) they are irrelevant to plaintiff's claims concerning the Model 700 rifle; and (2) they are highly sensitive trade secrets, pertaining to an as yet not developed New Bolt Action Rifle. “NBAR” is the acronym for “New Bolt Action Rifle.” Secondly, Remington contends that the documents should not be released even under a protective order, because a protective order cannot adequately protect their interest in confidentiality. At the heart of Remington’s second argument is the claim that counsel for plaintiff previously has violated protective orders issued in other cases. Federal Rule of Civil Procedure 26(c)(7) affords protection in cases where discovery involves trade secrets. The rule provides that a court may limit the terms of disclosure or refuse disclosure where good cause is shown, such as in the case of a trade secret or confidential information. A court must balance the competing interest in disclosure and discovery against the interest in confidentiality. As the Eighth Circuit has advised, the court inquiry involves two parts. First, the party opposing discovery must show that the information is a trade secret or confidential information of a proprietary nature requiring protection, within the meaning of Rule 26(c)(7). Missouri law applies to determine whether the documents are trade secrets. See A.B. Chance Co. v. Schmidt, 719 S.W.2d 854, 857-58 (Mo.App.1986) (defining trade secret in context of employment contract restricting disclosure). Then the burden shifts to the party seeking discovery to establish relevancy and need. In re' Remington Arms, 952 F.2d at 1032. If the party successfully shows both relevance and need, then the court must weigh the potential injury from disclosure against the moving party’s need for the information. In this case, if Remington shows the NBAR documents are trade secrets and Plaintiff Hartman shows their relevancy and need, then the Court must issue an appropriate protective order to preserve the interests of the parties. Centurion Indus., Inc. v. Warren Steurer & Assoc., 665 F.2d 323, 325 (10th Cir.1981). Before designing a proper protective order, the Court must consider Remington’s second contention that plaintiff’s counsel has permitted unauthorized disclosures of informa — 675 — tion covered by protective orders in prior cases. If a protective order cannot prevent unauthorized disclosure by plaintiff, then the Court may find it appropriate to deny production of the documents. Trade Secrets The Court has reviewed each of the documents filed in camera. Defendant claims the NBAR documents are privileged and should remain confidential because they are trade secrets. Although some of the documents are privileged and constitute trade secrets independently, defendant maintains that all are privileged because they are part of the compiled NBAR files. According to Remington, once it included the documents in the NBAR development files, they became part of the NBAR trade secret and would show the company’s developmental design process and files. Missouri law utilizes the definition of trade secret presented in Restatement of Torts § 757(b). Trade secret information, such as a process, formula or design, must be secret or it loses its privilege of confidentiality. A.B. Chance Co., 719 S.W.2d at 858 (quoting five factors from Restatements § 757(b), defining a trade secret). Trade secret is a flexible term and involves a number of factors to assess the party’s interest in confidentiality. Defendant bases its privilege on the assertion that the documents are NBAR trade secrets. The Court’s review of the materials and the briefs submitted indicates that many of the documents do pertain to the NBAR product that remains in the development stage. However, some of the documents concern products other than NBAR. Giving a broad interpretation to Remington’s privilege claim, the Court finds that defendant has demonstrated the trade secret privilege applies to the NBAR documents and to other documents included in the files. Relevancy and Need The next question is whether plaintiff has demonstrated that the documents are relevant and needed. Remington’s contention that the documents are irrelevant and entitled to all-encompassing protection goes too far. Although defendant hinges its privilege on the fact that the NBAR files are trade secrets, the documents are not limited to NBAR information. A few documents are copies of magazine articles, already part of the public domain even though they have added significance as part of the NBAR files. A large number of the NBAR documents include significant references to the Model 700, as well as to similar models of defendant’s products. Under Remington’s assertion, any document placed in these files is privileged as a trade secret because it is part of the “compilation of information.” Taking defendant’s argument to the “nth” degree would encourage defendants to merge research on existing/old products with development of new designs in order to avail themselves of the trade secret privilege for all documents placed in the on-going research files. The documents do not lose their relevance to plaintiff’s claims simply by their placement in the NBAR files. In this case, plaintiff seeks discovery of information for his product defect, negligence, and other tort claims. Many of the documents relate to plaintiff’s claims. Plaintiff alleges that the Model 700 design is flawed with respect to its safety, trigger mechanism, bolt lock, and accidental firing. Plaintiff further alleges that NBAR is simply a continuation of the Model 700. A review of the NBAR files reveals their relevance to the issues of causation, feasible alternative designs, and defendant’s knowledge at the time. Plaintiff asserts, and defendant has not refuted, that the company’s research and work on Model 700 curtailed in the early 1980’s, around the same time that the NBAR design was getting off the ground. The features addressed in the NBAR documents are relevant to Remington’s knowledge of design alternatives and of problems with Model 700. Plaintiff also has demonstrated the need for these documents. Without the NBAR documents, plaintiff is left with a significant time gap in the evidence concerning — 676 — the design information known to defendant; the evidence also provides the only source of admissions and information on defendant’s knowledge of alleged Model 700 defects, testing done on Model 700 and alternative components. Two examples illustrate the overbreadth of defendant’s contention that all the documents are entitled to absolute protection as NBAR trade secrets. The first example is an undated note from Ed Herring on a photocopied page from a magazine or book, File 11 Document DF 46. The note specifically addresses incorporating an alternate component in the Model 700 rifle. Defendant asserts that the document is part of Mr. Martin’s NBAR files, “perhaps because of the drawing of a competitive fire control contained therein.” Despite the fact that File 11 Document DF 46 expressly refers to the Model 700 and its safety options, defendant’s index reveals that it has never been produced to plaintiff and that its only basis of confidentiality is as “compilation of information.” The second example appears to be a customer letter, from Bob Hagel, about the Model 700 written on February 9,1984, File 11 Document DF-1468. Defendant’s counsel explains that Mr. Hagel is a gun writer. Although this letter discusses only the Model 700, counsel explains that the letter was directed to the NBAR design team and placed in the NBAR files because it suggested an added Model 700 feature which the NBAR team is considering for the new design. Documents DF-1466-67 and 1469 relate to the Hagel letter and the feasibility of alternative designs. Plaintiff has established that the NBAR documents are relevant and needed. Balance of Interest Where information has been found both relevant and necessary to a plaintiff’s case, the court then must balance the defendant’s interest in confidentiality against the plaintiff’s need for the information. Coca-Cola Bottling Co. v. Coca-Cola Co., 107 F.R.D. 288, 291-93 (D.Del.1985). Generally, an appropriate protective order can preserve the interests of both parties. Centurion Indus., Inc. v. Warren Steurer & Assoc., 665 F.2d 323, 325 (10th Cir.1981). A balance of the competing interests in this case undercuts defendant’s claim of absolute privilege. In a case where opposing party is a competitor, defendant’s files as a whole would be due a greater level of protection. Here, plaintiff is allegedly the party injured by tortious wrongdoing. Discovery of the documents is critical to plaintiff’s case. The Eighth Circuit directs that, on remand, this Court consider Remington’s allegation that plaintiff’s counsel previously permitted unauthorized disclosures of information covered by protective orders in past cases. If a protective order cannot assure the confidentiality of Remington’s documents, then discovery must be denied. The parties have fully briefed the issue. Remington alleges two violations of past protective orders. The first involves a deposition of Stuart Otteson, taken by plaintiff’s counsel in the case of Davison v. Remington Arms Co. Inc., Case No. 89-56RG (C.D.Cal.), where counsel allegedly disclosed protected documents from Chapa v. Remington, Case No. 13,461 (D.C. Duval County, Tex.). The second allegation concerns disclosures of documents protected in Lewy v. Remington Arms, Case No. 83-3172-CV-S-2 (W.D.Mo.), to plaintiff’s expert John Butters prior to Mr. Butters executing an affidavit concerning their confidentiality. Violation of Chapa Order Remington alleges that plaintiff's counsel improperly disclosed protected documents to Mr. Otteson, during the course of deposing Mr. Otteson. The documents were part of the protected information in the Chapa case. Plaintiff makes two responses to this charge. First, plaintiff contends that Mr. Otteson was a defense expert and, even if he was not identified as a defense expert, he was an employee or expert for purposes of the deposition. Plaintiff asserts that, in deposing an adverse witness, disclosure was proper and that plaintiff is not responsible for assuring that defendant’s employees — 677 — and consultants comply with the protective order. Plaintiff contends that counsel for Remington has admitted in prior cases that Mr. Otteson was a consulting expert for the company and when he appeared for deposition three Remington lawyers attended. Defendant has submitted a series of carefully worded affidavits to refute the contention. Mr. Otteson avers, in his affidavit, that plaintiff’s counsel served him with a deposition notice for the Davison case and sent him documents. He does not describe the documents or otherwise identify them. Noticeably, Mr. Otteson does not state whether he was under defendant’s employ or hired as a consulting witness in the Davison case. Mr. Shaw, Remington’s counsel in Davison, expresses in his affidavit that defendant had never identified or retained Mr. Otteson as an expert in the case; he does not address whether Mr. Otteson was otherwise in the employ of Remington. Mr. Ware, counsel for Remington in other cases, provides his affidavit stating that he has hired Mr. Otteson as a consultant for preparation in litigation in other cases. Mr. Ware also attests that he is not part of the Davison litigation and has only bare knowledge of the case, however, he affirms that Mr. Otteson is not a consulting expert in Davison, to the best of his knowledge. Second, plaintiff asserts that the documents disclosed to Mr. Otteson were not protected trade secrets because the trade secret privilege relating to those documents has been lost or diminished through a series of trials and inadvertent disclosures. The Chapa protective order permits disclosure of confidential documents to persons whose services are necessary to the litigation. Only one of the documents which plaintiff identifies as potential Chapa documents is designated as confidential. That document, plaintiff asserts, became unprotected when it was admitted as evidence in the Lewy case. Moreover, plaintiff argues that the Chapa order permits limited disclosure for other litigation and does not proscribe disclosure to Remington’s experts. The Court notes that Remington never brought claims of a protective order violation to the attention of the Chapa or Davison courts. Although Remington contends that deposing Mr. Otteson was improper under Fed.R.Civ.P. 26(d), it never raised that objection in the Davison case. The three carefully worded affidavits lend little support to defendant’s assertion that Mr. Otteson was not an employee or consultant of Remington. Moreover, defendant has failed to identify any document that was improperly disclosed to Mr. Otteson. Plaintiff has identified the pertinent documents and has explained that the documents are unprotected by the Chapa protective order because they had previously lost their protected status. The Court finds no violation of a protective order, based on the evidence presented. Violation of Lewy Order Remington next alleges that plaintiff’s counsel improperly disclosed documents protected in Lewy v. Remington Arms, Case No. 83-3172-CV-S-2 (W.D.Mo.), to plaintiff’s expert John Butters. The essence of the alleged violation is that Mr. Butters failed to execute the required affidavit promising to keep the information confidential before he viewed the documents. Mr. Butters did execute such an affidavit after the Lewy case was concluded and the affidavit was filed following post-trial motions in the Lewy case, as required by Paragraph 4 of the protective order. Defendant contends that this “after-the-fact” compliance is not compliance at all and constitutes a violation of the Lewy order. Defendant makes no claim that the alleged violation was raised before the Lewy court. Nor does defendant allege any harm accrued from the belated execution of Mr. Butters’ affidavit. Mr. Butters has been identified as a plaintiff’s expert in more than a dozen Remington-related cases, and he attests that he knew beforehand of the applicable protective order and the confidentiality of the documents. Mr. Butters explains that he has previously seen the same documents in similar Remington cases, so he did not view them for the first time in the Lewy — 678 — litigation. He vows that he has retained their confidentiality and never will disclose or discuss the information outside the terms of the protective order. Paragraph 4 of the Lewy protective order applies and Mr. Butters should have executed the affidavit prior to viewing any protected documents. The Court finds that plaintiffs counsel substantially complied with the Lewy order. This compliance is adequate, in the absence of some showing of harm. Weighing the Interests Defendant has established that the NBAR documents are entitled to protection as trade secrets. Plaintiff, on the other hand, has shown the relevancy and need of those documents. After weighing the party’s respective interests, the Court determines that disclosure with certain exceptions is appropriate. A protective order can adequately safeguard defendant's interest in the confidentiality of the NBAR documents. Some of the documents are entitled to absolute protection because they feature the actual designs for the NBAR product; defendant will not be ordered to disclose those documents, as specified in Appendix A. A weighing of the competing interests results in a ruling that all documents in the NBAR files, other than those specified here, should be disclosed under the guise of a protective order. Conclusion Once defendant established that the in camera NBAR documents are probable trade secrets, plaintiff made an adequate showing of their relevance and need. Defendant has not demonstrated its claim that plaintiff’s counsel violated the Chapa protective order. The evidence pertaining to the Lewy violation, the “after-the-fact” affidavit, constitutes a technical violation; substantial compliance has been satisfied and no harm has resulted. While compliance with court orders is mandated, each counsel must evaluate whether these kind of technical, insubstantial violations of protective orders should be brought to the attention of the courts. In the future, defendant would find it advisable to raise objections to disclosure or allegations of protective order violations before the court which issued the order. That would lend credence to defendant’s allegations of such violations in later proceedings. The Court finds that the competing interests weigh in favor of defendant with respect to certain documents; those documents are specified in Appendix A and are entitled to absolute protection, due to their highly confidential nature. The Court resolves that defendant’s proprietary interest in the remaining NBAR documents will be adequately protected by a properly worded protective order. Remington and plaintiff will be ordered to file a joint proposed protective order for the Court’s approval. It is hereby ORDERED that plaintiff’s motion to compel discovery is granted in part, as described in this Order. It is further ORDERED that Defendant Remington Arms Co., Inc.’s motion to reconsider is denied in part and granted in part, to the extent described in this Order. It is further ORDERED that the parties shall submit a joint proposed protective order for Court approval, on or before April 23, 1992. It is further ORDERED that Remington is required to produce the documents as described in Appendix A, attached to this Order. All documents shall be disclosed under the terms of the protective order. APPENDIX A Remington Arms Co. Inc. shall produce for discovery the documents noted below. Remington should provide plaintiff the index of the disclosed documents which indicates the name of the file numbers referred to below. Pages that are part of the same document should be fastened together. File 1 Produce all documents in this file except: DF 2935 Any documents dated after November of 1987. — 679 — File 2 Produce all documents in this file except: DF 6 DF 47 Any documents dated after November of 1987. File 3 Produce all documents in this file except- DF 149 DF 271 DF 273 DF 331-33 DF 365-69 DF 374 DF 1577-84 DF 1597-1600 DF 1980-86 DF 2656-86 DF 2658-61 DF 2684-85 DF 2693 DF 2695-98 DF 2733-34 DF 2736-51 DF 2782-83 DF 2795-97 DF 2807 DF 2814 DF 2822-23 Any documents dated after November of 1987. File 4 Produce all documents in this file except: DF 687 DF 919 DF 923 DF 1281 DF 1595-96 DF 1601-06 DF 1628-31 DF 1792-99 DF 1805 DF 2077-78 DF 2083-86 Any documents dated after November of 1987. File 5 Produce all documents in this file except: DF 886 DF 1622-26 DF 2117 Any documents dated after November of 1987. File 6 No documents in this file need be produced. File 7 No documents in this file need be produced. File 8 Produce only the following documents in this file: TM 223 May black-out all of this document except title, date and distribution information. TM 225 May black-out all of this document except “New Bolt Action Rifle” section, which includes 17 lines of text. TM 226 May black-out all of this document except “Model 700 Classic” section, which includes 12 lines of text. TM 423 May black-out all of this document except title, date and distribution information. TM 425-26 May black-out all of this document except “Model 700 Mountain Rifle” and “New Bolt Action Rifle” sections. — 680 — TM 431 May black-out all of this document except “Mountain Rifle” section and author information. TM 610-11 May black-out all of this document except title, date and distribution information and Paragraph 8. TM 615-16 May black-out all of this document except title, date and distribution information and Paragraph 8. TM 623-24 Produce entire document. TM 1534 Black-out all except date and first sentence. TM 1537 Black-out all except sections on “M/700 Stiff Safeties” and “M/700 Take Down Screws.” TM 1551 Black-out all except title, date and distribution information. TM 1553-54 Black-out all except sections on “M/700 Stiff Safeties” and “M/700 Take Down Screws.” TM 5284 Black-out all except title, date and distribution information. TM 5285 Black-out all except title and first sentence. TM 5287 Black-out all except entire section on “NBAR Status.” TM 5288 Black-out all except author and position-title. TM 5295 Black-out all except title and entire section on “NBAR,” which is 17 lines of text. File 9 Produce only the following documents in this file: RR 54 Date and distribution information only. RR 56 Black-out all except “Bolt Action Rifle Development” section. RR 69 Date and distribution information only. RR 72 Black-out all except “Bolt Action Rifles” section. RR 89 Date and distribution information only. RR 91 Black-out all except “Bolt Action Rifles” section. RR 92 Black-out all except “Model 700 Classic” section. RR 93 Black-out all except “Warning Rollmark” and “model 700” sections. RR 95 Date and distribution information only. RR 98 Black-out all except “Model 700 Classic” and “Model 700 No-Bind” sections. RR 100 Date and distribution information only. RR 101 Black-out all except “Bolt Action Rifles” section. RR 102 Black-out all except “Model 700 Classic” section. RR 106 Black-out all except author-initials reference. RR 118 Date and distribution information only. RR 120 Black-out all except “Bolt Action Rifle Development” section. RR 121 Black-out all except “Model Seven” section. RR 122-23 Black-out all except “Model 700 Restyle” section. RR 135 Date and distribution information only. RR 139 Black-out all except “Bolt Action Rifles” section. RR 149 Date and distribution information only. RR 150-51 Black-out all except “Bolt Action Rifle,” “Model 700 ADL” and “Model Seven” sections. RR 154 Black-out all except first three sentences of “Automatic Fire Control” section. RR 160 Date and distribution information only. RR 161 Black-out all except “New Bolt Action Rifle” section. RR 168 Date and distribution information only. — 681 — RR 170-71 Black-out all except “Bolt Action Rifle” and “Model Seven” sections. RR 239 Date and distribution information. RR 241 Black-out all except “Bolt Action Rifle” section. RR 243 Black-out all except “Model Seven” section. RR 301 Date and distribution information only. RR 306 Black-out all except “Bolt Action Rifle” section. RR 317 Date and distribution information. RR 318 Black-out all except “Bolt Action Rifle” section. RR 346 Date and distribution information only. RR 351 Black-out all except “New Bolt Action Rifle” section. RR 360 Black-out all except author reference. RR 386 Date and distribution information only. RR 388 Black-out all except heading “New Bolt Action Rifle” and the second sentence of the following paragraph. RR 392 Black-out all except author reference. RR 400 Date and distribution information only. RR 402 Black-out all except first paragraph of “New Bolt Action Rifle” section. RR 406 Black-out all except author reference. RR 447 Date and distribution information only. RR 449 Black-out all except first paragraph of “New Bolt Action Rifle” section. RR 452 Black-out all except author reference. RR 460 Date and distribution information only. RR 462 Black-out all except “New Bolt Action Rifle” section, both paragraphs. RR 465 Black-out all except author reference. RR 468 Date and distribution information only. RR 470 Black-out all except “New Bolt Action Rifle” section. RR 473 Black-out all except author reference; RR 476 Date and distribution information only. RR 483 Black-out all except first two paragraphs of “New Bolt Action Rifle” section. RR 488 Black-out all except author and date references. RR 505 Date and distribution information only. RR 512 Black-out all except first paragraph of “New Bolt Action Rifle” section. RR 514 Black-out all except author reference. RR 536 Black-out all except date and distribution information and three paragraphs of “NBAR” section. RR 539 Date and distribution information only. RR 540 Black-out all except “NBAR” section. RR 542 Date and distribution information only. RR 543 Black-out all except “NBAR” section. RR 570 Date and distribution information only. RR 576-77 Black-out all except paragraphs one, two and four of “New Bolt Action Rifle” section. RR 583 Black-out all except “NBAR Modeling” section and author and date references. RR 620 Entire page. RR 623 Date and distribution information only. RR 625 Black-out all except first two paragraphs of “NBAR” section. RR 633 Date, heading and first two paragraphs of page. — 682 — RR 634 Date, distribution, heading, and first two paragraphs of page. RR 658 Date and distribution information only. RR 659 Black-out all except “New Bolt Action Rifle” section. DF 882 Entire page. DF 1286 Date and distribution information only. DF 1289 Black-out all except “New Bolt Action Rifle” section. DF 1290 Author-initials and date references. DF 1293 Date and distribution information only. DF 1298 Black-out all except first paragraph of “New Bolt Action Rifle” section and author-initials. DF 1311 Date and distribution information only. DF 1312 Black-out all except heading, names and first paragraph of “New Bolt Action Rifle” section and author-initials reference. DF 1314 Date and distribution information only. DF 1315 Black-out all except heading, names and first paragraph of “New Bolt Action Rifle” section and author-initials. DF 1332 Date and distribution information only. DF 1338 Black-out all except “New Bolt Action Rifle” section. DF 1345 Date and distribution information only. DF 1348-49 Black-out all except “New Bolt Action Rifle” section. DF 1357 Date and distribution information only. DF 1362 Black-out all except “Bolt Action Rifle” section. DF 1368 Date and distribution information only. DF 1371-72 Black-out all except “Bolt Action Rifle” section. DF 1373 Date and distribution information only. DF 1377 Black-out all except “Bolt Action Rifle” section. DF 1379 Date and distribution information only. DF 1386-87 Black-out all except “Bolt Action Rifle” section. DF 1394 Date and distribution information only. DF 1395 Black-out all except seventh paragraph. DF 1400-01 Black-out all except “Bolt Action Rifle” section. DF 1402 Black-out all except “Model 700 BDL” section. DF 1403-04 Black-out all except “Model Seven Lightweight” section. DF 1408 Date and distribution information only. DF 1415-16 Black-out all except “Bolt Action Rifle” section. DF 1417-18 Black-out all except “Model Seven Lightweight” section. DF 1425 Entire page. DF 1842 Date and distribution information only. DF 1843 Black-out all except first fifteen lines of “NBAR” section. DF 1845 Date and distribution information only. DF 1846 Black-out all except “New Bolt Action Rifle” section. DF 1849 Black-out all except date and distribution information and “NBAR” section. DF 1852 Date and distribution information only. DF 1853 Black-out all except “NBAR” section. DF 1856 Black-out all except “NBAR” section. DF 1858 Date and distribution information only. DF 1860 Black-out all except “NBAR” section. DF 1863 Date and distribution information only. DF 1865 Black-out all except first two paragraphs of “NBAR” section. DF 1866 Date and distribution information only. DF 1873 Black-out all except first two paragraphs of “NBAR” section. — 683 — DF 1878 Black out all except author-initials reference. DF 1890 Date and distribution information only. DF 1897 Black-out all except first two paragraphs of “New Bolt Action Rifle” section. DF 1899 Black out all except author-initials reference. DF 1902 Black-out all except “New Bolt Action Rifle” section. DF 1906 Black out all except author-initials reference. DF 1909 Date and distribution information only. DF 1916 Black-out all except first two paragraphs of “New Bolt Action Rifle” section. **Note: page DF 1917 is missing. DF 1921 Black out all except author-initials reference. DF 1924 Date and distribution information only. DF 1925 Black-out all except last heading and section entitled “Rifle Development.” DF 1929 Black-out all except first two paragraphs of “New Bolt Action Rifle” section. DF 1930 Black-out all except “Model 700 Classic” section. DF 1934 Black out all except author-initials reference. RR 1398 Date and distribution information only. RR 1399 Black-out all except fourth paragraph. RR 1403-06 Black-out all except “New Bolt Action Rifle,” “Model Seven Lightweight,” and all three “Model 700” sections. RR 1410 Date and distribution information only. RR 1414-15 Black-out all except “New Bolt Action Rifle,” “Model Seven Lightweight,” and “Model 700 ADL” sections. RR 1427 Date and distribution information only. RR 1434 Black-out all except “Bolt Action Rifles” section. RR 1435 Black-out all except first three paragraphs of “Model 700 ADL” section. RR 1443 Date and distribution information only. RR 1447-48 Black-out all except “Bolt Action Rifles” section. RR 1450 Black-out all except “Model 700 ADL” section. RR 1451-52 Black-out all except first paragraph “Model Seven Lightweight” section. RR 1456 Date and distribution information only. RR 1461 Black-out all except “Model 7” section. RR 1468 Black out all except author-initials and date references. RR 1481 Date and distribution information only. RR 1493-94 Black-out all except “Model 700 Mountain Rifle” and “New Bolt Action Rifle” sections. RR 1494 Black-out all except “Model Seven Lightweight” section. RR 1495 Black out all except author-initials reference. RR 1497 Date and distribution information only. RR 1500-01 Black-out all except “NBAR,” “Model 700 Mountain Rifle,” and “Model Seven Lightweight” sections. RR 1512 Date and distribution information only. RR 1517 Black-out all except “Bolt Action Rifle” section. RR 1518-19 Black-out all except “Model Seven Lightweight” section. RR 1533 Date and distribution information only. RR 1540-41 Black-out all except “Bolt Action Rifle” section. RR 1542-43 Black-out all except “Model Seven Lightweight” section. RR 1548 Date and distribution information only. RR 1555 Black-out all except “Bolt Action Rifle” section. RR 1556 Black-out all except “Model Seven Lightweight” section. RR 1567 Date and distribution information only. — 684 — RR 1574-75 Black-out all except “Bolt Action Rifle” section. RR 1576-77 Black-out all except “Model Seven Lightweight” section. RR 1582 Date and distribution information only. RR 1588-89 Black-out all except “Bolt Action Rifle” section. RR 1591-92 Black-out all except nine paragraphs of “Model Seven Lightweight” section. RR 1606 Date and distribution information only. RR 1611 Black-out all except “Bolt Action Rifle” section. RR 1612 Black-out all except “Model Seven Floor Plate” section. RR 1636 Date and distribution information only. RR 1639 Black-out all except “New Bolt Action Rifle” section. RR 1640 Black-out all except “Model 700 Mountain Rifle” section and author-initials, date references. RR 1641 Date and distribution information only. RR 1645-46 Black-out all except “New Bolt Action Rifle” and “Model 700 Classic” sections. RR 1649 Black out all except author-initials reference. RR 1652 Date and distribution information only. RR 1656 Black-out all except “New Bolt Action” section. RR 1659 Black out all except author-initials reference. RR 1661 Date and distribution information only. RR 1664-65 Black-out all except “Model 700 Mountain Rifle” and “New Bolt Action Rifle” sections. RR 1666 Date and distribution information only. RR 1670-71 Black-out all except “Model 700 Mountain Rifle” and “New Bolt Action” sections. RR 1672 Date and distribution information only. RR 1678 Black-out all except “Model 700 Mountain Rifle” and “New Bolt Action” sections. RR 1685 Black out all except author-initials reference. RR 1699 Date and distribution information only. RR 1703-04 Black-out all except “Model 700 Mountain Rifle,” “New Bolt Action” sections and author-initials reference. RR 1719 Date and distribution information only. RR 1724 Black-out all except “Model 700 Mountain Rifle” and “New Bolt Action” sections. RR 1733 Black out all except author-initials reference. RR 1736 Date and distribution information only. RR 1741-42 Black-out all except “Model 700 Mountain Rifle” and “New Bolt Action” sections. RR 1759 Date and distribution information only. RR 1763-64 Black-out all except first two paragraphs of “New Bolt Action,” “Model 700 Classic” sections, and author-initials reference. RR 1767 Date and distribution information only. RR 1774 Black-out all except first two paragraphs of “New Bolt Action” section. RR 1779 Black out all except author-initials reference. RR 1782 Date and distribution information only. RR 1789 Black-out all except “New Bolt Action” section. RR 1791 Black out all except author-initials reference. RR 1794 Date and distribution information only. RR 1801 Black-out all except first two paragraphs of “New Bolt Action” section. RR 1806 Black out all except author-initials reference. RR 1810 Date and distribution information only. — 685 — RR 1816-17 Black-out all except paragraphs one, two and four of “New Bolt Action” section. RR 1823 Black out all except “NBAR Modeling” section and author-initials, date references. RR 1832 Date and distribution information only. RR 1833 Black-out all except “New Bolt Action” section. RR 1836-37 Entire document. RR 1878 Date and distribution information only. RR 1879 Black-out all except “NBAR” section. File 10 Produce only the following documents in this file: DF 544-45 Entire document. DF 881 Entire document. DF 1291 Date and distribution information only. DF 1292 Black-out all except “New Bolt Action,” sections. DF 1299 Black-out all except date and distribution information and “NBAR” section. DF 1300 Black-out all except “Model 700 Classic” section. DF 1303 Black-out all except date and distribution information, paragraph one of “700 Mountain Rifle” and “NBAR” sections. DF 1304 Black-out all except Date and distribution information, “Model 700 Mountain Rifle” section. DF 1305 Black-out all except “New Bolt Action” section. DF 1313 Black-out all except date and distribution information and “New Bolt Action” section. DF 1316 Black-out all except date and distribution information and “New Bolt Action” section. DF 1323 Black-out all except date and distribution information and “New Bolt Action” section. DF 1325 Black-out all except date and distribution information and first two paragraphs. DF 1326 Black-out all except “New Bolt Action” section. DF 1330 Black-out all except date and distribution information and “New Bolt Action” section. DF 1350 Entire page. DF 1443 Black-out all except Date and distribution information, “New Bolt Action” and “M/700 Classic” sections. DF 1839 Entire document. DF 1939 Date and distribution information only. DF 1940 Black-out all except “New Bolt Action” section. DF 2001 ' Black-out all except first seventeen lines of document. DF 2011 Black-out all except first seventeen lines of document. DF 2012 Black-out all except date and distribution information and first three paragraphs of text. RR 525 Entire document. RR 529 Entire document. RR 547 Entire document. RR 558 Entire document. RR 596 Entire document. RR 598 Entire document. RR 620 Entire document. RR 621a Entire document. RR 629-30 Entire document. RR 632 Entire document. — 686 — RR 634 Entire document. File 11 Produce all documents in this file except: DF 100 Black-out paragraphs four and nine. DF 110 Black-out last section, including two paragraphs. DF 890 Black-out title and following text. DF 1465 Black-out first four words of second line of text and lines four through nine which encompass the second section. DF 1530-33 DF 1812 Black-out last five lines of page which is entire last section. DF 2017 Black-out lines ten through thirteen of text. DF 2018 Black-out sentence beginning with the word “Extra.” DF 2019 Black-out line beginning with the word “Finishes.” DF 2503 Black-out last five lines of text. DF 2504 DF 2505-06 DF 2978-93 File 12 No documents in this file need be produced. File 13 Produce all documents in this file except. DF 1429-31 Any documents dated after November of 1987. File 14 Produce all documents in this file except. DF 1156 Black-out all except last five lines of text. DF 1158 Black-out all except first two lines and date and distribution information. DF 1160 DF 1162 Black-out all except date and last five lines of text. DF 1163 Black-out last twelve lines of text. DF 1166 Black-out all except date and last thirteen lines of text. DF 1178 Black-out all except date and last fourteen lines of text. DF 1179 Black-out all except date and first ten lines of text. DF 1180 Black-out all except date and “Bolt Action” section. DF 1181 Black-out all except date and DF 1182-83 Black-out all except date and “Bolt Action” section. DF 1184 Black-out all except date and “Bolt Action” and “Model Seven Lightweight” sections. DF 1185 Black-out all except date and “Bolt Action” and “Model Seven Lightweight” sections. DF 1186 Black-out all except date and “Bolt Action” section. DF 1187 Black-out all except date and “Bolt Action” and “Model Seven Lightweight” section. DF 1188 Black-out all except the twenty-seventh through thirty-third lines of text. DF 1189 Black-out all except the twenty-second through thirty-third lines of text. DF 1190 Black-out all except the first three lines of text and lines ten through seventeen of text. DF 1218 DF 1224 — 687 — DF 1259 DF 1265-67 DF 1270-71 DF 1273 File 15 No documents in this file need be produced. Supplementary In Camera Submissions Attached to Hutton Affidavit Produce only the following document in this file: RR 634 ORDER ON MOTION FOR RECONSIDERATION April 28, 1992 Before the Court is Defendant Remington Arms Co., Inc.’s motion for reconsideration of the April 13,1992 Order. On April 13, 1992, the Court ordered Remington to produce the documents designated in Appendix A. The Court further ordered the parties to submit a joint proposed protective order by April 23, 1992, for Court approval. Remington submitted the above-referenced motion on the April 23rd deadline, rather than the proposed protective order. The Court held a teleconference with the parties concerning the motion. Remington’s motion raises overall objections to the extent of Court-ordered disclosure and raises specific objections to certain documents. Remington states that it can provide the Court with a complete list of the objected documents, but that it needs “several days to compile this list since each document must be reviewed.” Remington has already had more than several days, in fact it waited until the last of the ten days provided by the Court Order to file the present motion. The Court has reviewed Remington’s objections, both the general and specific objections. Some of the objections are well-taken and are provided further protection as noted below. Other objections are simply repeated and have been discussed extensively elsewhere. The Court has conducted considerable factual and legal analysis of the documents. The Court will not entertain any further motions for reconsideration. Most of Remington’s objections have been previously addressed. It must be remembered that Remington primarily has based its privilege from full disclosure on the contention that the in camera documents pertain to a new bolt action rifle (NBAR), which is still under development. Documents which concern the Model 700, the specific subject of this litigation, are not protected by that privilege. Where documents concerning the Model 700, the NBAR, or other Remington products address the problems or alternatives for triggers, bolt locks, and other mechanisms related to accidental discharge, plaintiff’s need for many of those documents has been found to outweigh Remington’s interest in their secrecy. For clarification, the Court notes that customer-sales analysis has generally been protected from disclosure, but where those documents contain discussions of prototype models and design options, that material has been ordered disclosed. Most documents which post-date the November 1987 injury and those which address costs have been protected from disclosure, but a few documents which reference the continuing research of the fire control and its priority level, cost considerations, and legal concerns in modifying the rifle mechanisms are relevant to plaintiff’s claims and Remington’s knowledge of feasible options. The documents are relevant and necessary. Yes, some of the documents to be produced are sensitive, but the parties’ competing interests will be sufficiently protected by a protective order. Conclusion The Court makes the following modifications to its April 13, 1992 Order. It is hereby — 688 — ORDERED that Remington’s motion to reconsider is sustained in part and denied in part. It is further ORDERED that the April 13, 1992 Order is modified in the following respects. Remington is required to produce the documents designated in Appendix A of the April 13, 1992 Order, as is modified by Appendix B which is attached to this Order. It is further ORDERED that Remington shall file a joint protective order and produce all documents ordered to be disclosed to plaintiff within five (5) calendar days of this Order. The Court will not reconsider its ruling in this regard. A motion for reconsideration or any other form of objection will be an inappropriate response to this Order to file a joint protective order and produce the documents within five days. If the parties fail to file a joint protective order by the stated deadline, the delinquent party or parties will face potential sanctions. It is further ORDERED that if defendant finds it absolutely necessary to raise a related issue, it must do so by requesting a telephone conference no later than three calendar days after entry of this Order. It is further ORDERED that Remington file in camera with the Court copies of documents which have been noted as missing from the Court’s files. These documents include DF 281, DF 716, DF 1012-13, and DF 1917. It is further ORDERED that in future briefs which reference the in camera submission, the parties should designate in which file number the document may be found. APPENDIX B Remington Arms Co., Inc. shall produce for discovery the documents noted in Appendix A, which is incorporated into the Court’s April 13, 1992 Order. That Order is modified with respect to the documents specified herein. File 2 The following documents need not be produced or specific information may be redacted as is noted. DF 65 Need not produce. DF 277 Need not produce. DF 390 Need not produce. DF 1116 Black-out paragraph 3. DF 1123 Need not produce. DF 1124 Need not produce. DF 1125 Need not produce. DF 1127 Black-out second sentence of first paragraph. DF 1444-50 Need not produce. DF 1543 Need not produce. DF 1809 Need not produce. DF 1810 Need not produce. DF 2335 Black-out second sentence of first paragraph. DF 2340 Black-out paragraph 3. DF 2494 Black-out last seven lines of text. DF 2837 Need not produce. DF 2838-39 Need not produce. File 4 The following documents need not be produced or specific information may be redacted, as is noted. DF 151 Need not produce. DF 153 Black-out only upper right corner, margin note. DF 678 Black-out only second line. — 689 — DF 679 Black-out only title-heading. DF 1506-07 Information about Model 870 or shotguns. DF 693 Black-out last typed line. File 5 The following documents need not be produced or specific information may be redacted, as is noted. DF 161 Black-out last typed line. DF 249 Need not produce. DF 268 File 8 The following documents need not be produced. TM 623-24 File 9 The following documents need not be produced. RR 154 RR 633 File 11 The following documents need not be produced or specific information may be redacted, as is noted. [** Note: DF 281 is missing from Court file.] DF 625 Black-out only first four words of line 14. DF 635 Black-out only first four words of line 14. DF 657 Black-out paragraphs numbered 4 and 9. DF 690 Black-out only first line topic. DF 691 Black-out title-heading only. [** Note: DF 716 is missing from Court file.] [** Note: DF 1012 and DF 1013, discussed at page 7 of Remington’s motion, are not found in File 11.] DF 2523 Black-out last five lines of text. DF 2525 Need not produce. File 14 The following documents need not be produced or specific information may be redacted, as is noted. DF 1218 Need not produce. DF 1272 Black-out the line which includes three dollar figures. ORDER May 5, 1992 The Court conducted a telephone conference on May 4, 1992. Pursuant to that conference, it is hereby ORDERED that the documents specified in Appendix C, attached hereto, are protected from disclosure to plaintiff, as noted. It is further ORDERED that the parties be prepared to discuss the protective order and production of documents in a telephone conference to be held at 1:00 p.m. on May 8,1992. APPENDIX C Remington Arms, Inc. shall produce for discovery the documents noted in Appendix A, which is incorporated into the Court’s April 13, 1992 Order, as is modified by Appendix B in the April 28, 1992 Order, and as further modified herein. File 2 Specific information in the following documents may be redacted as is noted. DF 1487-89 Information about Model 870 or shotguns. DF 1506-07 Information about Model 870 or shotguns. — 690 — PROTECTIVE ORDER June 15, 1992 On April 13, 1992, this Court ordered Defendant Remington Arms Company, Inc. (Remington) to produce certain documents concerning the New Bolt Action Rifle subject to a protective order to be agreed upon by the parties. The April 13, 1992 Order has been amended by this Court’s Orders of April 28, 1992 and May 5, 1992. This Protective Order applies to all documents reviewed by the Court in camera, found confidential and ordered produced under these Orders or any future Order of this Court. The parties have been unable to agree on a proposed protective order. The Court has reviewed and compared the proposed protective orders submitted by plaintiff and Remington. The Court also has held lengthy teleconferences in which the parties expressed their concerns and needs for a Protective Order. The Court believes this Protective Order balances the parties’ needs and is appropriate under the circumstances present in this case. This Protective Order recognizes that Remington will produce documents which the Court has found to be trade secrets as set forth in prior Orders. This Order also establishes a procedure for making such documents and information available to counsel for use in this case, as well as in similar Remington bolt action rifle litigation, while at the same time protecting Remington’s proprietary interest. It is therefore ORDERED 1. That all documents, data, studies and other materials produced pursuant to any request for production, subpoena or other mode of discovery that have been or are found by this Court to be of a trade secret, privileged, proprietary or confidential nature (hereinafter Trade Secret information) shall be produced pursuant to the terms of this Order and shall be treated by all persons accorded access pursuant to this Order as Trade Secrets, containing confidential or privileged commercial and financial information. Access to the original Trade Secret information shall be made available to plaintiff only at the offices of counsel for Defendant Remington, by prearranged appointment as reasonably requested. The specific location where all documents produced under this Protective Order shall be reviewed is: Lathrop and Norquist, 2600 Mutual Benefit Life Building, 2345 Grand Avenue, Kansas City, Missouri, 64108. Access to the original documents at the offices of counsel for Remington shall be provided only to counsel for plaintiff, Richard C. Miller, his co-counsel, and any attorney or paralegal who will assist in reviewing the original documents. All pages of all copies of documents provided to plaintiff’s counsel pursuant to this Order or any future Order of this Court shall bear a clearly visible designation of “Confidential.” Any failure of Remington to designate each page as “Confidential” shall result in a loss of protection for that page. 2. Remington’s Index of documents submitted in camera shall be redacted to delete only descriptions of the contents and authors of those documents which the Court does not order Remington to produce. All other information regarding each document, including the page numbers and dates, shall be retained. Remington shall provide a copy of the index marked “Confidential” with the documents and information produced. 3. That this Protective Order shall apply only to those documents provided to the Court for in camera review in this litigation as set forth on Remington’s Index, referred to previously. The Court’s review of the indexed documents submitted in camera was thorough, complete and final, subject to the right of the parties to seek limited reconsideration of same as set forth below or extraordinary relief by appeal. 4. In light of the effort expended by this Court, the Court intends that its Or — 691 — ders be available in similar Remington bolt action rifle litigation and be adopted or modified to the extent determined appropriate by the presiding judicial authority and as is consistent with applicable law. Therefore, the following information from this litigation shall be made available to any other judge in similar Remington bolt action rifle litigation where counsel for plaintiff is a counsel of record: this Protective Order; the April 13, April 28, and May 5, 1992 Orders; any other Orders entered in this case; all information, briefs, and affidavits submitted to this Court in camera; and the complete unredacted index of in camera documents. This information shall be available to review, modify, or adopt in such litigation as any judge finds relevant and appropriate. Counsel for plaintiff may provide a copy of this Protective Order to any judge in such litigation and, where the judge requests the aforementioned information, this Protective Order facilitates defendant’s disclosure of information from the present action to that other judge. It is, of course, the prerogative of any other judge to determine whether the litigation is similar, whether the information is relevant, and whether the information should be disclosed under the laws applicable in that litigation. 5. At the conclusion of the review of the Trade Secret documents produced, counsel for plaintiff shall provide counsel for Remington with a list designating those documents selected to be copied at plaintiff’s expense. Within ten (10) days of receipt of this list, counsel for Remington shall provide counsel for plaintiff copies of the specific requested documents. 6. Counsel for plaintiff may also list and identify as specifically as possible without seeing them any other documents reviewed in camera which the Court did not order Remington to produce but which plaintiff, for good cause, believes should be produced. Within ten (10) days of receipt of this list, counsel for Remington will advise counsel for plaintiff of any objections to production of these documents. Copies of all documents, the production of which Remington does not oppose, shall also be provided to plaintiff within ten (10) days of the receipt of plaintiff’s list. Counsel for plaintiff and counsel for Remington will confer in order to resolve any dispute over whether documents that were originally found to be absolutely privileged in the Court’s initial in camera review should be produced. If complete agreement between counsel cannot be reached, plaintiff shall be permitted to file a limited in camera motion for reconsideration regarding those documents which plaintiff alleges should not be absolutely privileged. Counsel for Remington shall respond to this motion, likewise in camera within ten (10) days. Again, it is contemplated that counsel for the parties acting in good faith will reduce and limit the number of documents, if any, to be so handled. 7. That copies of Trade Secret information produced pursuant to this Order, as well as all transcripts, notes and records discussing same shall be available solely to plaintiff’s counsel, his co-counsel, any member of their firms participating or assisting in this litigation and those persons retained as liability experts, either consulting or to testify, in this matter. No such expert retained by plaintiff may be an officer, director, or regular employee or ever have been a regular employee of any corporation, entity or person who is a manufacturer of bolt action firearms or a competitor of Remington in the firearms market. Because of the limitation on employment of plaintiff’s experts by the firearms industry, Remington is prohibited in this matter from cross-examining plaintiff’s liability experts on the lack of employment by a firearm’s manufacturer or the firearms industry in general. However, plaintiff may make the Trade Secret information available to any liability expert retained by Remington or E.I. Du Pont de Nemours Co. in this matter as well as any Remington officer, director or employee, past or present. Each plaintiff’s counsel shall be personally responsible for the co-counsel’s and the expert’s compliance with the terms of this Protective Order. 8. That prior to permitting access to Trade Secret information to any person as contemplated above, counsel for plaintiff shall require the person to whom disclosure is to be made to read a copy of this Protective Order and to certify in a written affidavit that he or she has reviewed this Or — 692 — der and consents to be bound by its terms. The affidavit so executed shall contain the signatory’s full name, business address and employer, and the name of the litigation party with whom the signatory is associated. Such affidavit shall be served upon counsel for Remington before disclosure is made and if no written objection thereto is served upon counsel requesting same within ten (10) days then disclosure shall follow. Attached hereto as Exhibit “A” and incorporated by reference is the affidavit form for use in compliance with the terms of this paragraph. Counsel for each party shall keep a complete and current record of all persons to whom any Trade Secret information has been disclosed. If any Trade Secret information remains for a period of time in the possession of anyone but counsel of record under the terms of this Protective Order, counsel shall also list the items of Trade Secret information which each individual retains. 9. That all parties in possession of Trade Secret information pursuant to the terms of this Order shall notify Remington of their intent to use or present such information on the record whether by deposition, pleading, oral argument, or otherwise ten (10) days in advance of such use. If Remington objects to the proposed use of Trade Secret information, it must notify that party of its specific objections at least five (5) days in advance of such use. Counsel for the parties shall discuss any objections and if the parties cannot resolve the objections it shall be Remington’s duty to arrange a telephone conference with the Court prior to the date of intended use. All transcripts and pleadings on this issue shall be filed in camera. 10. Disclosure of Trade Secret information in a deposition or a hearing in this matter shall be made only under the conditions that the material and that portion of any transcript related to same is then immediately placed under seal subject to further orders of this Court regarding its disclosure at trial or otherwise. Remington shall designate on the sealed record all material and any portion of transcripts which are sealed in this fashion and failure to do so results in a loss of protection for same. Remington shall obtain from each court reporter or other entity retained to record depositions or hearings all records of same, excluding the transcribed original and the parties' copies of same, and shall maintain all such records until the conclusion of all Remington bolt action rifle litigation in which the proceeding occurred. 11. That all persons who may be entitled to receive, or who are afforded access to any Trade Secret information by reason of this Order shall neither use nor disclose the Trade Secret information for purposes of business, competition, or any purpose other than the preparation for and conduct of this litigation as contemplated herein and shall keep the Trade Secret information secure in accordance with the purpose and intent of this Order. 12. That this Protective Order or any prior Order of this Court does not affect or control the discovery of any other documents in this or any other matters not reviewed by this Court in camera. The parties retain the right to question, challenge and object to the admissibility at trial of any and all documents, information and other evidence furnished under the terms of the Protective Order. 13. If any document or information is introduced into evidence in open Court or otherwise becomes a matter of public record, it shall lose its protected status under the terms of this Order. This Order shall in no way constitute a waiver of the rights of any party herein to contest any assertion or to appeal any finding that specific information is not Trade Secret information or should not be subject to the protective requirements of this Order. 14. That no later than ninety (90) days after completion of this proceeding and any related appeals, all Trade Secret information furnished under the terms of this Protective Order, including all copies and notes of same, which are not otherwise a matter of public record, shall be returned to counsel for Remington. Transcripts of any sealed depositions, hearings or trials that have not otherwise become matters of public record shall remain under seal, subject to further order of this Court. — 693 — [[Image here]]