2017-00216865-CU-BC

Andrew Smith vs. General Motors LLC

Nature of Proceeding: Motion for Protective Order

Filed By: Arens, Mary Lynn

General Motors LLC’s (“GM”) Motion for Protective Order is granted.

This Lemon Law action involves a 2011 Buick Enclave which Plaintiffs allege suffered from widespread defects including defects affecting the steering, cooling system and brakes

The Court finds that this motion is timely.

Plaintiff’s motion to compel production of documents by GM was granted by this Court on March 14, 2018, with production scheduled for not later than April 13, 2018. The discovery order requires GM to produce a large number of documents that refer or relate to GM’s internal investigations and analysis of the alleged defects contained in Plaintiffs’ vehicle and other vehicles of the same year, make, and model (Other Similar Incidents (“OSl”)), and GM LLC’s proprietary policies and procedures related to GM LLC’s Warranty Policies and Song-Beverly Policies. (Arens Dec., Ex. A).

GM’s proposed Protective Order is modeled after the Los Angeles Superior Court model Highly Confidential Protective Order, but with revisions that comply with California State Court Rules. (A copy of the proposed order is attached to the motion as Ex. 2. The revisions are located at Paragraphs 7(h), 8(b), 10, and 11. These modifications to the LASC form Highly Confidential Protective Order that GM has requested this Court to approve, at Paragraphs 7(h) and 8(b), include the additional language “provided that no disclosure shall be made to any expert or consultant who is currently employed by an automobile manufacturer competitor of General Motors,” and the provisions in Paragraphs 10 and 11 which contemplate allowing a party to disclose a potential safety defect to an appropriate government agency, which makes GM’s proposed Protective Order less restrictive, and protecting personally identifiable information (“PII”).

“The court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (CCP § 2031.060(b).) This includes preventing trade secrets or other confidential or commercial information from being disclosed, or disclosed only to specified persons. CCP §2031.060(b)(5). Further, CCP §2031.060(b)(6) allows a court the ability to seal protected information produced, and thereafter, opened only on order of the court.

“Where a party must resort to the courts, ‘the burden is on the party seeking the protective order to show good cause for whatever order is sought.’ [citation omitted].” (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 318.)

GM has here met its burden. GM has established by admissible evidence that the global automotive industry is highly competitive and GM’s business records contain highly confidential, proprietary, and commercially sensitive information such as engineering, warranty, and root cause analysis; engineering and manufacturing specifications and testing; component or product improvement; and costs and financial forecasts. (Lu Decl. ¶ ¶ 33 & 38).

March 14, 2018 may relate to and contain confidential, external communications between GM employees and its suppliers, and sub-suppliers pertaining to technical, mechanical, and commercial issues and analyses. (Lu Decl. ¶ 38). Importantly, some of the documents that Plaintiffs have requested to be produced in the instant litigation relate to OSI, which may include Personally Identifiable Information (“PII”) that, undoubtedly, should be covered by a Protective Order. (Lu Decl. ¶ 33). Such PII may include documents containing information including, but not limited to, financial transactions, employment information, and information which can be used to distinguish or trace an individual’s identity, such as name, social security number, contact information, and any other personal information which is linked or linkable to an individual. (Id.).

In opposition, Plaintiff argues that GM’s declaration is insufficient because it fails to demonstrate that the categories of documents involve trade secret or confidential information sufficient to meet the Highly Confidential standard. The Court disagrees. Plaintiff’s evidentiary objections are overruled. Plaintiff contends that the Los Angeles County Superior Court Confidential Only Protective Order is sufficient to address GM’s trade secrets. However, the LASC CPO does not contemplate trade secret, proprietary or confidential material, but rather information that is considered embarrassing or harassing. In this case, and on the showing made, the Court is

persuaded that the Protective Order proposed by GM is more appropriate given the court’s finding that GM has met its burden to show that the material is highly confidential, proprietary, and commercially sensitive information. The Court rejects plaintiff’s argument that it will not be able to present the protected materials to percipient witnesses. The documents may be presented to any deposition, trial, or hearing witness in the proceeding, which include percipient witnesses.

GM’S proposed protective order is reasonable in that it balances protection of GM’s confidential and proprietary information, and Plaintiffs’ requests for documents that allows Plaintiffs to review this material during discovery in the present matter, and provides Plaintiffs the ability to fully utilize these documents to litigate this matter. The proposed protective order does not shield GM from complying with the Court order granting Plaintiffs’ requests for further responses and production of documents; it merely reduces the risk that any order issued by this Court will cause GM harm beyond the reaches of the present litigation and to ensure that GM’s confidential, commercially sensitive business information is protected from public disclosure.

On June 16, 2016, GM proposed the same slightly modified version of the Los Angeles Superior Court Model Highly Confidential Protective Order which GM seeks in the instant matter to serve as a model for all cases in which similar document productions would be made. (See Arens Decl, Exhibit B). Plaintiffs’ counsel has not been willing to engage in a global resolution to the Protective Order issue, and, instead, insists that GM LLC needs to file a Motion for Protective Order in each litigated matter.

There are other pending Lemon Law cases against GM between the same firms in this Court. In the interests of judicial economy, the Court declines to accept the additional burden of a separate Motion for Protective Order in each Lemon Law action brought by plaintiffs against GM. The Court expects counsel to engage in further meet and confer efforts to agree on a model protective order to be used in each Lemon Law action between the same counsel and involving the same issues.