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ORDER 

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

SAMUEL CAWYER, individually and on

behalf of DIMITRI “PETE” CAWYER, a

minor,

Plaintiffs,

v.

SEARS, ROEBUCK AND CO.;

HUSQVARNA OUTDOOR PRODUCTS,

INC., FORMERLY ELECTROLUX HOME

PRODUCTS, INC.,

Defendants.

CASE NO. C06-5391RJB

ORDER RE-NOTING

PLAINTIFF’S FIRST MOTION

TO COMPEL RE: DEFENDANT

HUSQVARNA AND

DEFENDANTS’ MOTION FOR A

PROTECTIVE ORDER

This matter comes before the Court on Plaintiff’s First Motion to Compel RE: 

Defendant Husqvarna (Dkt. 13) and Defendants’ Motion for a Protective Order (Dkt. 22). The

Court has considered the pleadings filed in support of and in opposition to the motions and the

remainder of the file herein.

I. FACTUAL BACKGROUND AND PROCEDURAL BACKGROUND

According to the Amended Complaint, Virgil Cawyer was operating a Sears Craftsmen

lawn tractor in reverse to when the mower made contact with Dimitri “Pete” Cawyer, his paternal

grandson. D kt. 1. As a result, Pete Cawyer suffered injuries to his body and to his left leg and

foot. Id. The plaintiff brings suit against Sears Roebuck and Company and Husqvarna Outdoor

Products, Inc. for the following: violation of the Washington Product Liability Act; negligence;

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ORDER 

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strict liability; Restatement (2d) of Torts, 402A; breach of express warranty; breach of implied

warranty; defective design; inadequate warnings; inadequate instructions; misrepresentation and

concealment of information; and violation of the Washington Consumer Protection Act. Id. at 3. 

The discovery deadline in this case is May 21, 2007. Dkt. 9. On February 21, 2007, the

plaintiff moved to compel the defendants to fully answer discovery requests. Dkt. 13, 14. The

Court re-noted the portion of the motion pertaining to Requests for Production 13, 16, and 18 in

order to allow the parties to move for a protective order governing the Project 405 file, the

Tracey Walters videotape, and “the 2002 Universal Terms and Conditions document.” Dkt. 21 at

6. The defendants have moved for a protective order, and the motion to compel responses to

requests for production 13, 16, and 18 is ripe for the Court’s review. See Dkt. 22, 13.

The subject of this discovery dispute is the defendant’s Project 405 file. According to

Husqvarna, the Project 405 fie was compiled over a five or six year period by Tracey Walters, a

project engineer for Husqvarna, and contains 2,271 pages of engineering notes, brainstorming

notes, drawings, specifications, and other documents used to develop Husqvarna’s Reverse

Operation System. Dkt. 22 at 2-3. The Reverse Operation System was implemented in August of

2004. Dkt. 19 at 2. The Project 405 file also includes a demonstration video of a proposed design.

Id. at 2. The defendants filed, under seal, illustrative exhibits from the Project 405 file and offer

to provide the Court with a compact disc containing the entire file. Dkt. 22 at 3 n.1.

II. DISCUSSION

Protective orders are governed by Federal Rule 26, which provides as follows:

Protective Orders. Upon motion by a party or by the person from whom discovery is

sought, accompanied by a certification that the movant has in good faith conferred or

attempted to confer with other affected parties in an effort to resolve the dispute without

court action, and for good cause shown, the court in which the action is pending or

alternatively, on matters relating to a deposition, the court in the district where the

deposition is to be taken may make any order which justice requires to protect a party or

person from annoyance, embarrassment, oppression, or undue burden or expense,

including one or more of the following: 

. . .

(7) that a trade secret or other confidential research, development, or commercial

information not be revealed or be revealed only in a designated way;

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ORDER 

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Fed. R. Civ. P. 26(c).

Under Washington law, a trade secret is defined as follows:

(4) "Trade secret" means information, including a formula, pattern, compilation, program,

device, method, technique, or process that:

(a) Derives independent economic value, actual or potential, from not being generally

known to, and not being readily ascertainable by proper means by, other persons who can

obtain economic value from its disclosure or use; and

(b) Is the subject of efforts that are reasonable under the circumstances to maintain its

secrecy.

RCW 19.108.010(4).

A. ENTRY OF PROTECTIVE ORDER

The plaintiffs object to entry of a protective order on the grounds that the Project 405 file

does not contain trade secrets. First, the plaintiffs contend that the Reverse Operation System is

generally known because it is not materially different from “the ‘engine kill’ safety features

developed by MTD/Cub Cadet in the 1980s” and “the four (4) position patented console switch

developed by Murray.” Dkt. 24 at 5. The defendant concedes that the Reverse Operation System

utilizes a part patented by Murray but contends that the system as a whole was developed by

Husqvarna for its tractors. Dkt. 19 at 2. The plaintiffs acknowledge that the Reverse Operation

System differs from the system patented by Murray because the Reverse Operation System

includes an additional override setting. Dkt. 24 at 5. 

Second, the plaintiffs contend that as of January 2003, the Project 405 file did not contain

information pertaining to the Reverse Operation System. Dkt. 24 at 3. The Project 405 file has

grown since 2003, however. Dkt. 19 at 2.

Finally, the plaintiffs contend that certain portions of the Project 405 file were made a

matter of public record in a case pending in Kentucky and should therefore be excluded from

protection. Dkt. 24 at 3. The plaintiffs ask that the Court require the defendants to produce a log

listing documents qualifying as trade secrets. 

While some of the Project 405 files justify entry of a protective order, the Court is not yet

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ORDER 

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in a position to determine which documents are deserving of such protection and is unwilling to

issue a blanket protective order governing the entire Project 405 file. 

B. TERMS OF PROPOSED PROTECTIVE ORDER

The proposed protective order submitted in this case is deficient in the following respects. 

First, the request is too broad. The proposed protective order is not limited to the Project 405 file,

and the terms of the order give discretion to the parties to designate documents subject to the

protective order. See Dkt. 22-2, Exh. A. at 2-3. Any request for a protective order to be entered

by the Court must be narrowly drawn, clearly identifying the class or type of documents subject to

the protective order and the reason underlying the request for the order. 

Second, the proposed order provides for the filing of documents under seal without a

motion to the Court. Dkt. 22 at 3. Each time that the parties propose to file documents under

seal, they should file a motion and make “a compelling showing.” See Local Rule CR 5(g).

Third, the proposed order provides that confidential documents and copies thereof must

be returned. Dkt. 22-2, Exh. A at 6. This provision does not contain an exception for documents

filed with the Court.

Finally, the order must contain a provision that the Court may change the terms of the

protective order on its own motion after notice to the parties and an opportunity to be heard. The

parties may, of course, agree on confidentiality among themselves, but when the parties request

the involvement of the Court, the parties must make the requisite showing. 

C. PLAINTIFFS’ OBJECTIONS

The plaintiffs contend that if the Court determines that a protective order is warranted, the

Court should decline to include certain portions of the defendants’ proposed protective order. 

First, the plaintiffs urge the Court to exclude provisions prohibiting retention of

documents at the conclusion of the litigation. Dkt. 24 at 6. The plaintiffs contend that the Court

should protect documents in the Project 405 file from the defendants’ document destruction

policies. Dkt. 24 at 6. The plaintiffs cite an opinion from the Circuit Court of Cook County,

Illinois, in which the court concluded that Sears has a retention policy that prevents discovery.

Dkt. 24 at 7. The lawfulness and efficacy of Husqvarna’s document retention policy is not an

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ORDER 

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issue before the Court. 

Second, the plaintiffs object to provisions of the proposed protective order regarding

disclosure of work product. Dkt. 24 at 6. The proposed protective order allows for disclosure of

work product containing information in or derived from the Project 405 file to several classes of

people who may be associated with this action. See Dkt. 22-2, Exh. A at 3-4. The plaintiffs have

not demonstrated that the proposed protective order is overly restrictive in this regard.

Third, the plaintiffs urge the Court to remove language from the proposed protective

order regarding sealing or extinguishing “attorney work product created from the Project 405

file.” Dkt. 24 at 9. The proposed protective order is limited to potential work product “relating”

to confidential materials and should instead be limited to materials derived from the Project 405

file.

Fourth, the plaintiffs contend that the proposed protective order should not prohibit

plaintiffs’ counsel from “verifying the completeness of the documents with other attorneys

involved in NMIR litigation with these same Defendants’ attorneys.” Dkt. 24 at 10. The plaintiffs

offer a protective order governing the Project 405 file in a different case and ask that the Court

take a similar approach. While the proposed protective order does not explicitly provide for such

verification efforts, it does allow for disclosure to experts and consultants. See Dkt. 22-2, Exh. at

4. The proposed protective order is not overly restrictive in this regard.

Finally, the plaintiffs ask that any protective order not restrict the use of documents

contained in the Project 405 file in connection with pre-trial motions or publishing documents to

the jury at the trial of this case. The proposed protective order does not appear to have such an

effect, but the Court notes that whether documents may be published to the jury is an issue not yet

before the Court. 

D. SURREPLY

On April 11, 2007, plaintiffs’ counsel filed a declaration opposing the defendants’ reply.

Dkt. 27. The declaration contains a list of state and federal cases. See id. This document, filed

after the motion noting date, fails to comply with Local Rule CR 7(g) and has not been

considered.

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ORDER 

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E. CONCLUSION

The defendants have demonstrated that a protective order is warranted to protect trade

secrets contained in the Project 405 file, but the Court is not yet able to determine which of the

Project 405 file documents contain trade secrets. The defendants must demonstrate good cause

for justifying protection of each document to be governed by a protective order. The Court

should therefore re-note Defendants’ Motion for a Protective Order (Dkt. 22) and Plaintiff’s First

Motion to Compel RE: Defendant Husqvarna (Dkt. 13) to allow for supplemental briefing as to

which documents in the Project 405 file should be protected. In light of the upcoming discovery

deadline, the parties are encouraged to work together to come to an agreement on the pending

motions.

III. ORDER

Therefore, it is hereby

ORDERED that Plaintiff’s First Motion to Compel RE: Defendant Husqvarna (Dkt. 13)

and Defendants’ Motion for a Protective Order (Dkt. 22) are RE-NOTED for consideration on

May 4, 2007. The parties may supplement their briefing as follows: the defendants’ brief is due

April 23, 2007; the response is due April 30, 2007; the reply is due May 4, 2007.

The Clerk of the Court is instructed to send uncertified copies of this Order to all counsel

of record and to any party appearing pro se at said party’s last known address.

DATED this 16th day of April, 2007.

ARobert J. Bryan

United States District Judge 

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