Is a Blanket “Attorneys Eyes Only” Designation Appropriate for ESI?
Can a party blanket designate its entire document production, including hard copy documents and electronically stored information, as “Attorney Eyes Only” (AEO)? The Northern District of California pondered this question in the antitrust case Mathew Enterprise, Inc. v. Chrysler, Case No. 5:13-cv-04236-BLF (N.D. Cal. Jan. 7, 2015).
Chrysler proposed a protective order whereby all documents and ESI would have an AEO designation. Chrysler argued it would save time and effort of a front-end confidentiality review of every document in the production. It also proposed procedures to mitigate the expense to Plaintiff, including:
- Plaintiff’s counsel could still offer legal advice to the client based on their document review;
- Any documents in an oral deposition could be shown with the less-restrictive designation “Confidential;”
- Up to 150 documents could be submitted by Plaintiff’s counsel to Chrysler for individual review of the AEO designation; and
- Plaintiff’s counsel could, of course, challenge any AEO designation to the court.
Plaintiff objected to Chrysler’s proposal, arguing that Chrysler’s proposed protective order improperly attempted to shift the costs of Chrysler’s document review and production to Plaintiff.
FRCP 26(c) authorizes courts to use discretion to enter protective orders on good cause when necessary to protect a party from undue burden or expense. The court considered Chrysler’s assertion of undue burden and expense, and granted the protective order, stating that “fear alone should not discourage modest discovery innovations that might do some good.” The court based its reasoning on the following five factors:
- First, the Ninth Circuit recognized over 30 years ago that antitrust actions often have prohibitive discovery costs. When it factored in the proliferation of ESI in modern cases, “prohibitive sounds almost quaint,” the court noted. The court thus agreed that Chrysler’s AEO proposal mitigated such costs by limiting the “eyes on” review to a subset of 150 documents.
- Second, the court found the benefits of Chrysler’s “back-end” proposal would be reduced if the court agreed to Plaintiff’s “front-end” categorization to qualify for AEO status.
- Third, considering the amount in controversy (approximately a million dollars) compared to the potential cost of document review and production, the cost of a front-end review could consume a meaningful portion of the total amount at issue.
- Fourth, documents attached to dispositive motions are presumably public, while discovery materials are not. Even if all documents are designated AEO, the court reasoned that it would maintain the public’s right to access the case materials because the parties would still have to seek court permission to seal documents (and any burden on Plaintiff would be mitigated because the burden of substantiating the AEO designation remains with Chrysler).
- Fifth, the court acknowledged that Chrysler’s approach constitutes a “new approach to discovery management,” and that sometimes new proposals fail. The court, thus, left the door open for Plaintiffs to move for reconsideration in the future.