Hundreds of plaintiffs injured by transvaginal mesh have joined the multi-district litigation currently active in the Southern District of West Virginia. On March 15, 2013, the plaintiffs in In Re: American Medical Systems, Inc., Pelvic Repair Systems Products Liability Litigation won a significant and strategic victory against one of the defendants in the case, American Medical Systems. American Medical Systems, had filed for a protective order in an attempt to avoid the deposition of two of its employees.* The court rejected the defendant’s request and instead ordered discovery to proceed.*
A protective order is an order issued by a trial or magistrate judge that prohibits a party in litigation from requesting information from the other side or from a non-party witness. Sometimes, protective orders are issued to protect against the disclosure of confidential information such as trade secrets. Other times, such orders are issued to protect a party from being burdened by repetitive or unduly invasive discovery requests.
The standard for a protective order is outlined in Federal Rule of Civil Procedure 26(c). The bar is generally set quite high.* According to Fed. R. Civ. P. 26, a court may issue a protective order to prevent annoyance, embarrassment, oppression, or undue burden or expense. Even if the order is issued, an outright prohibition on depositions is far from the only option. There are at least eight types of protective orders. For example, a court may seal discovery documents so that they may only be opened upon the approval of the judge.** Alternatively, a judge may limit the scope of the discovery allowed. ***
Despite the multitude of options at its disposal, the court rejected the defendant’s application for a protective order and ordered the depositions of the two employees of American Medical Systems to go forward.* The depositions will likely bring out new information relevant to the plaintiffs’ claims and allow their cases to advance one step closer to resolution.
** Fed. R. Civ. P. 26(c)(1)(F).
*** Fed. R. Civ. P. 26(c)(1)(D)