United States District Court, D. South Dakota, Southern Division
DUANE EISENBERG and JANNA EISENBERG, individually and as husband and wife, Plaintiffs,
SORIN GROUP DEUTSCHLAND GMBH, and SORIN GROUP USA, INC., Defendants.
MEMORANDUM OPINION IN SUPPORT OF PROTECTIVE ORDER
LAWRENCE L. PIERSOL UNITED STATES DISTRICT JUDGE.
following factual allegations are contained in
Plaintiffs' Complaint. Doc. 1.
of 2015, Plaintiff Duane Eisenberg underwent aortic valve
replacement surgery at Sanford Medical Center in Sioux Falls,
South Dakota. Id. at ¶ 38. In the months
following his surgery, Mr. Eisenberg's health steadily
deteriorated and in November of 2016, he was diagnosed with
mycobacterium chimaera (M. chimaera). Id.
at ¶¶ 39-41. In December of 2016, Plaintiffs filed
suit against Defendants alleging Mr. Eisenberg was exposed to
M. chimaera during surgery as a result of the use of
Defendants device, the Sorin 3T Heater-Cooler (the "3T
Device"). Id. at ¶¶ 49-93.
22, 2017, Defendants filed a Motion for Entry of a Protective
Order and, Plaintiffs responded. Doc. 40-41. The parties
agreed as to the contents of the proposed protective order,
with the exception of Paragraphs 2 and 3, which concerned the
scope of access to and use of protected confidential
information. Defendants' proposed order sought to limit
dissemination of confidential information to this case and
any other cases where Plaintiffs' counsel is counsel of
record. Doc. 40; 43. Conversely, Plaintiffs'
proposed order sought to expand the protective order to allow
counsel for victims to share produced documents and
information. Doc. 41.
7, 2017, after consideration of the two proposed orders, the
Court entered Plaintiffs' proposed protective order. Doc.
26(c) of the Federal Rules of Civil Procedure governs the
granting of a protective order and requires that "good
cause" be shown for a protective order to be issued.
FED. R. CIV. P. 26(c); Gen. Dynamics Corp. v. Selb Mfg.
Co., 481 F.2d 1204, 1212 (8th Cir. 1973); Pansy v.
Borough of Stroudsburg, 23 E.3d 772, 786 (3d Cir. 1994)
(citations omitted) (finding that "it is
well-established that a party wishing to obtain an order of
protection over discovery materials must demonstrate that
'good cause' exists for the order of
protection."). Federal courts use a balancing test in
determining whether good cause exists for a protective
order-balancing the requesting party's need for
information against the injury that may result if
uncontrolled disclosure is compelled. Pansy, 23 F.3d
at 787 (citing Arthur R. Miller, Confidentiality,
Protective Orders, and Public Access to the Courts, 105
HARV. L. REV. 427, 433-35 (1991)).
consider a variety of factors to determine if a protective
order is appropriate. Id. at 787-88. These factors
1. Whether disclosure will violate privacy interests;
2. Whether the information is being sought for a legitimate
purpose or for an improper purpose;
3. Whether disclosure of the information will cause a party
4. Whether confidentiality is being sought over information
important to public ...