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Flynn v. E.I. duPont de Nemours (9/17/99) sp-5177
Flynn v. E.I. duPont de Nemours (9/17/99) sp-5177
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
PAUL CHARLES FLYNN, ALEXIE )
PAUL FLYNN, natural father ) Supreme Court No. S-8551
of Paul Charles Flynn, and )
MAGGIE FLYNN, natural mother ) Superior Court No.
of Paul Charles Flynn, ) 4BE-91-170 CI
)
Appellants, )
) O P I N I O N
v. )
) [No. 5177 - September 17, 1999]
E. I. du PONT de NEMOURS AND )
COMPANY, and REMINGTON ARMS )
COMPANY, INC., )
)
Appellees. )
______________________________)
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Bethel,
Dale O. Curda, Judge.
Appearances: Phillip Paul Weidner, Weidner &
Associates, Inc., Anchorage, for Appellants.
John M. Conway, Atkinson, Conway & Gagnon,
Anchorage, Dale G. Wills and James P. Dorr,
Wildman, Harrold, Allen & Dixon, Chicago,
Illinois, and Karin S. Schwartz, Debevoise &
Plimpton, New York, New York, for Appellees.
Before: Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.
EASTAUGH, Justice.
1. INTRODUCTION
After settling his products liability claim, Paul Flynn
moved for modification of a protective order requiring him to
return all documents designated confidential by the defendant
manufacturer. Flynn had stipulated to entry of the order. The
court denied his motion and Flynn appeals. Because Flynn has not
demonstrated adequate justification for relief from the order to
which he had agreed, we affirm.
2. FACTS AND PROCEEDINGS
Paul Flynn and his parents (Flynn) sued E.I. du Pont de
Nemours and Company and its subsidiary, Remington Arms Company,
(collectively du Pont) for personal injuries allegedly caused by
the accidental discharge of a Remington Model 552 rifle. During
litigation, du Pont required Flynn to stipulate to entry of a
protective order before it produced copies of thousands of
documents Flynn had sought through discovery. The protective order
required Flynn, upon resolution of the dispute, to return all
documents Remington designated confidential. In July 1993 Flynn's
attorney signed and returned the stipulation, thus agreeing to
entry of the order; but by letter to du Pont's attorney, Flynn's
counsel also stated that he reserved the right to seek later
modification.
Four years later, after settling the personal injury
claim, Flynn sought modification of the order. Flynn's attorney,
Phillip Paul Weidner, stated in a supporting affidavit that he had
agreed to the order on an "emergency, temporary basis"in response
to du Pont's insistence, but that he wished to retain the documents
for "professional and educational purposes." Du Pont opposed
modification. The court denied Flynn's motion, as well as his
motion for reconsideration. It determined that Flynn had failed to
demonstrate that modification was warranted. Flynn appeals.
3. DISCUSSION
1. Standard of Review
Although requests for modification of discovery orders
are generally reviewed for abuse of discretion, this case turns on
two unresolved questions of law. We review these questions -- the
appropriate legal standard governing modification of discovery
orders, and the proper placement of the burden of proof -- de
novo. In doing so, we will adopt the rule of law that is most
persuasive in light of precedent, reason, and policy.
2. Burden of Proof
The superior court required Flynn to demonstrate that
modification was warranted because he had voluntarily stipulated to
the protective order. Flynn argues that he should not have borne
the burden of proof. We disagree.
Jochims v. Isuzu Motors, Ltd. is directly relevant. The
plaintiff there sought to modify a stipulated protective order.
The district court rejected his contention that it was the
defendant's burden to "demonstrate the need for maintaining the
existing protective order." It noted that there is general
unanimity among courts that a party to a stipulated order seeking
to modify that order bears the burden of demonstrating "particular
good cause"in order to succeed. The court held:
The courts' rationale for this standard is
that a party which in good faith negotiates a
stipulated protective order and then proceeds
to produce documents pursuant to that
protective order is entitled to the benefit of
its bargain; namely, to rely upon the terms of
the stipulated protective order.[ ]
We agree with this reasoning, and conclude that the superior court
did not err in placing the burden of proof on Flynn.
3. Request for Modification of Stipulated Order
A stipulated protective order is founded on an agreement
between parties. We will not disturb such an agreement absent
justification. We find no such justification here.
Flynn has advanced two principal rationales for
modification. First, Flynn's counsel asserts that he wishes to
retain the documents for his own benefit in order to maintain the
integrity of his files and to study them for purposes of future
litigation. Second, he asserts that he wishes to retain the
documents for purposes of public access because they may be
destroyed under du Pont's document destruction policy. He also
claims that the interest in public access to these documents
outweighs any confidentiality concerns du Pont may have because the
"blanket"protective order he signed covers a significant number of
documents which contain neither trade secrets nor privileged
information.
Du Pont argues that retention of the documents for the
sole benefit of Flynn's attorney cannot justify rescission of the
parties' knowing, voluntary, court-ratified agreement. Because
Flynn's attorney currently has no pending claims against du Pont,
du Pont contends that any claim that the documents will be useful
to him in future litigation is purely speculative.
Du Pont also asserts that modification is not warranted
by the possibility the documents might be destroyed. It asserts
that Flynn's evidence of du Pont's document destruction policy is
outdated and inaccurate. At oral argument before us, counsel for
du Pont represented that the documents will be available to future
litigants as long as there is an ongoing need for them in
litigation and assured us that "there is no threat to the existence
of these documents." We accept those representations as the
guarantee of du Pont and its counsel that the documents will remain
available and will not simply be destroyed upon the conclusion of
Flynn's appeal in this case.
We recognize the significant policy concerns underlying
Flynn's attempt to retain the documents to maintain their
availability to future litigants in the event of their destruction
by du Pont. Nonetheless, having agreed to and benefitted from the
protective order, Flynn cannot obtain modification of the order for
solely self-interested reasons or speculative public policy
concerns.
Our decision here is informed by the opinions of federal
courts considering this issue. Some federal courts have permitted
modification of protective orders when the interests of third
parties or the public outweigh the protected party's interest in
maintaining secrecy. But Flynn has cited no authority supporting
modification under the circumstances found here. The key cases
allowing modification involve relief sought by or for the benefit
of third parties. They support modification for general public
policy reasons, not for the benefit of an original party or his
attorney. Flynn's request exceeds the boundaries staked out by
those courts that freely allow modification. The superior court
correctly concluded that Flynn had offered no reason justifying
relief from the protective order.
4. Duress
Flynn also argues that the agreement should be voided
because he entered into it under duress. To prevail on a claim of
duress, Flynn must establish that: (1) he involuntarily accepted du
Pont's terms; (2) the circumstances permitted no alternative; and
(3) those circumstances were the result of coercive acts by du
Pont. Flynn has failed to demonstrate that he lacked viable
alternatives to accepting du Pont's terms. He could have tried
to negotiate different terms or challenged du Pont's terms in the
superior court. If necessary, he could have sought to continue the
scheduled discovery to give the court time to resolve this dispute.
Therefore, we find no basis for his claim of duress.
E. Letter Reserving Right to Seek Modification
The letter of Flynn's counsel accompanying the
stipulation and purporting to reserve the right to seek
modification of the order does not help either his claim of duress
or his request for modification. It stated:
As we discussed in our conversation, and
pursuant to our understanding reached in same,
I am signing this stipulation so that the
materials you have been holding pursuant to
our previous discovery requests, and so that
the materials we anticipate receiving copies
of in our upcoming discovery inspection . . .
during the week of July 19, 1993 may be
provided by your clients, with the specific
understanding that I am reserving my right to
approach the court to modify any of the terms
and conditions of same. That is, I maintain
that certain recitations and conditions in
said order are not well taken and warranted,
however, I am agreeing to sign same at this
juncture to avoid further delay in discovery,
but I will be approaching the court to modify
same, on the grounds the order sought is over
broad and not justified.
This letter permits findings that Flynn's counsel
believed himself to be acting under pressure from du Pont, that he
considered the order overbroad, and that he communicated his
dissatisfaction to du Pont. But counsel's affidavit accomplishes
the same thing. A mere subjective perception of urgency -- or mere
dissatisfaction with the terms of an agreement -- does not suffice
to establish a claim of duress voiding that agreement.
Nor do the recitations in this letter justify
modification of the agreement. By its own terms, the letter has no
substantive effect. It does not enlarge Flynn's preexisting
rights. It simply reserves his right to seek modification; he has
now exercised that right. Counsel's statement that he believed
certain provisions in the order to be unwarranted does not affect
our assessment of the merits of his motion. And it does not affect
Flynn's obligations under the agreement his counsel signed.
4. CONCLUSION
We AFFIRM the superior court's denial of Flynn's motion.
Although it appears that the real beneficiary of
modification would be Flynn's attorney, not Flynn, we attribute the
arguments for modification to Flynn because Paul Flynn was the lead
party seeking modification below and he is the lead appellant.
We generally review discovery orders for abuse of
discretion. See Jones v. Jennings, 788 P.2d 732, 735 (Alaska
1990). Federal courts also apply this standard to requests for
modification. See Beckman Indus., Inc. v. International Ins. Co.,
966 F.2d 470, 472 (9th Cir. 1992).
See Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
See id.
145 F.R.D. 499 (S.D. Iowa 1992). This case is sometimes
referred to as "Jochims I"to distinguish it from two other
similarly titled cases. See Jochims v. Isuzu Motors Ltd., 148
F.R.D. 624 (S.D. Iowa 1993) (Jochims II), modified by Jochims v.
Isuzu Motors Ltd., 151 F.R.D. 338 (S.D. Iowa 1993) (Jochims III).
See Jochims I, 145 F.R.D. at 500-01.
Id. at 501.
Id. at 501. In contrast, courts disagree about the
proper placement of the burden of proof in requests for
modification initiated by third party intervenors. See 8 Charles
Alan Wright et al., Federal Practice and Procedure 2044.1, at
574-84 (2d ed. 1994) (cataloging a range of approaches towards
modification from permissive to strict). Compare Wilk v. American
Med. Ass'n, 635 F.2d 1295, 1299 (7th Cir. 1980) (allowing
permissive modification), with Martindell v. International Tel. &
Tel. Corp., 594 F.2d 291, 296 (2d Cir. 1979) (imposing strict
limitations on modification).
Jochims I, 145 F.R.D. at 501-02 (citations omitted).
As du Pont observes, we have recognized spoliation of
evidence as a tort in Alaska. See Hazen v. Municipality of
Anchorage, 718 P.2d 456, 463-64 (Alaska 1986).
See, e.g., Beckman Indus., Inc. v. International Ins.
Co., 966 F.2d 470, 475-76 (9th Cir. 1992); Wilk, 635 F.2d at 1299;
Kraszewski v. State Farm Gen. Ins. Co., 139 F.R.D. 156, 159-60
(N.D. Cal. 1991).
See, e.g., Beckman, 966 F.2d at 475 (involving third
party intervenors seeking modification); Kraszewski, 139 F.R.D. at
158-60 (involving modification sought by class counsel to benefit
plaintiffs in another pending suit).
See Helstrom v. North Slope Borough, 797 P.2d 1192, 1197
(Alaska 1990).
According to du Pont, it conditioned copying, but not
inspection, of the documents on a stipulated protected order.
According to Flynn, du Pont also conditioned inspection of the
documents on signing the order.
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