United States District Court, D. Connecticut
SIDHI VINAYAK PETROLEUM, INC.
HESS CORPORATION, et al.
RULING ON PLAINTIFF'S MOTION FOR PROTECTIVE ORDER
(DOC. NO. 102) AND DEFENDANTS' CROSS MOTION FOR
PROTECTIVE ORDER (DOC. NO. 103)
M. SPECTOR, UNITED STATES MAGISTRATE JUDGE
RELEVANT FACTUAL BACKGROUND
plaintiff Sidhi Vinayak Petroleum, Inc., a franchisee of
defendant Hess Corporation [“Hess”], commenced
this litigation on October 31, 2016 (Doc. No. 1), arising out
of two transactions: (1) the transfer of the franchise
agreements with Hess to defendant Marathon Petroleum Company,
LP [“Marathon”] when defendant Hess sold its
refinery assets in October 2014; and, (2) the plaintiff's
right of first refusal as it applied to defendant Petroleum
Marketing Group, Inc.'s [“PMG”] offer to
purchase defendant Marathon, made on May 22,
16, 2019, the plaintiff filed a Motion for Protective Order
(Doc. No. 102), and the next day, the defendants Hess,
Marathon, and PMG, filed their Cross-Motion for Protective
Order, and opposition to the plaintiff's Motion. (Doc.
No. 103). On June 11, 2019, the Court (Eginton, J.) issued an
Order finding the Motion for Protective Order moot and
granting the Cross Motion for Protective Order. (Doc. No.
106). Following a Motion for Reconsideration filed by the
plaintiff (Doc. No. 107), the Court reopened the
plaintiff's Motion and the defendants' Cross Motion
and referred both to this Magistrate Judge. (Doc. No. 108).
On June 18, 2019, the plaintiff filed a brief in opposition
to the plaintiff's Cross Motion (Doc. No. 111), and on
July 2, 2019, the defendants filed their reply brief. (Doc.
reasons set forth below, the plaintiff's Motion for
Protective Order (Doc. No. 102) is denied, and the
defendants' Cross Motion for Protective Order (Doc. No.
103) is granted.
parties have submitted proposed Protective Orders governing
the information, documents, and other materials produced
during discovery in this action. Protecting the privacy of
proprietary information is the legitimate purpose of a
protective order, and it is undisputed in this case that a
protective order is appropriate and necessary to govern the
exchange of confidential and proprietary business information
to be disclosed in discovery. See Burgess v. Town of
Wallingford, No. 3:11 CV 1129(CSH), 2012 WL 4344194, at *9
n.17 (D. Conn. Sept. 21, 2012) (“Absent a protective
order, ‘the discovery rules place no [specific]
limitations on what a party may do with materials obtained
during discovery.'”) (quoting 23 Am. Jur. 2d
Depositions and Discovery § 167 (Westlaw update Aug.
2012)). As the United States Supreme Court has explained,
“Rule 26(c) confers broad discretion on the trial court
to decide when a protective order is appropriate and what
degree of protection is required[, ]” Seattle Times Co
v. Rhinehart, 467 U.S. 20, 36, 104 S.Ct. 2199, 81 L.Ed.2d 17
(1984), and it is this “degree of protection”
that is at issue in the underlying motions.
proposed orders differ in their restriction on the use of the
designated materials, the procedure for challenging
designations, and the process for sealing designated material
filed with the Court. In addition, the plaintiff's
Proposed Protective Order does not include language that the
filing of pleadings or other papers disclosing or containing
designated material does not waive the designated status of
the material, or language that the Court will determine how
that material will be treated during trial and other
proceedings. (Compare Doc. No. 102, at 3
¶¶ 5, 12, 14 with Doc. 103, Ex. A
¶¶ 5, 12, 14, 15).
defendants argue that the plaintiff's proposed order is
“fundamentally improper and deficient” in that
there is no prohibition on the use of confidential
information. (Doc. No. 103 at 2). The defendants'
Proposed Protective Order, identical to the Standing
Protective Order used by many of the district judges in this
district,  states that material designated as
confidential under the protective order “shall not be
used or disclosed for any purpose other than the
litigation of this action and may be disclosed only” in
a stated manner, whereas, the plaintiff's Proposed
Protective Order states that designated material “shall
not be disclosed for any purpose other than the litigation
and may be disclosed only” in the stated manner.
(Compare Doc. No. 102, at 2 ¶ 5 with
Doc. No. 103, Ex. A ¶ 5). Counsel for the plaintiff
argues that counsel, or their respective firms, “have
had the same dispute over the word ‘use' for
perhaps twenty years” and that counsel's
“future compliance with the order could constitute a
blatant violation of [Rule 5.6 of the] Rules of Professional
Conduct” which prohibits restrictions on a
lawyer's right to practice. (Doc. No. 111 at 2).
response, the defendants argue that the plaintiff's
position is “wrong on all fronts” as the
“[m]ere access to information via the discovery process
does not give one the right to appropriate that information
for its own use[, ]” and that, if the plaintiff and its
counsel were allowed “to assume dominion over the
defendants' confidential and proprietary information
simply because the plaintiff has served discovery in this
lawsuit, ” Rule 26(c) would be “defeated, ”
and the defendants “would be forced to scrutinize all
of their discovery compliance with the goal of maximizing the
protection of their confidential and proprietary
information.” (Doc. No. 114, at 4-5) (citation
omitted). The Court agrees with the defendants.
as the defendants note appropriately, the plaintiff mis-cites
Rule 5.6 of the Connecticut Rules of Professional Conduct.
Rule 5.6(2) reads, “A lawyer shall not participate in
offering or making . . . [a]n agreement in which a
restriction on the lawyer's right to practice is
part of the settlement of a client
controversy.” Conn. Rules of Prof'l Conduct r.
5.6(2) (emphasis added). Similarly, Model Rule of
Professional Conduct 5.6(b) provides: “A lawyer shall
not participate in offering or making an agreement in which a
restriction on the lawyer's right to practice is part of
the settlement of a client controversy.” Model Rules of
Prof'l Conduct r. 5.6(b) (9th Ed. 2019). Moreover, ABA
Formal Opinion 00-417 explains that:
Rule 5.6(b) applies only to restrictions imposed as part of a
settlement of a controversy. Thus, the rule and this opinion
have no application to agreements restricting the use of
information where the agreement is entered into as a
condition of receiving the information. Nor does the rule
apply to protective orders imposed during litigation.
(Doc. No. 114, Ex. A n.4) (emphasis added). This case does
not involve a settlement of a client controversy. Thus, this
Rule of Professional Conduct is ...