UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

NINA BOROM, )

Plaintiff, )

)

v. ) Cause No.: 2:14-CV-22-JVB-PRC

)

MENARD, INC., )

Defendant. )

OPINION AND ORDER

This matter is before the Court on Defendant’s Motion for Protective Order [DE 15], filed

on July 1, 2014, and Plaintiff’s Motion to Compel [DE 18], filed on July 3, 2014. The Motion for

Protective Order became fully briefed on July 10, 2014. Defendant responded to the Motion to

Compel on July 17, 2014. Plaintiff has not filed a reply brief, and the deadline to do so (July 28,

2014) has passed. 

I. Background

Plaintiff alleges that she was walking down a stopped escalator at one of Defendant’s

hardware stores when one of Defendant’s employees started it, causing it to jolt forward. As a result,

Plaintiff alleges that she seriously injured her right knee. She filed this lawsuit against Defendant

on December 23, 2014. This case is now in the discovery stage.

Plaintiff asked for Defendant to produce copies of its surveillance videos of the alleged

accident. Defendant initially objected that it did not need to turn over the video footage because it

is attorney work product. After a renewed request, Defendant agreed to turn over the video footage

on the condition that Plaintiff enter into a confidentiality agreement. Plaintiff’s counsel initially

agreed, but after conferring with Plaintiff, he withdrew that agreement, demanding that the video

footage be turned over without a confidentiality agreement. Plaintiff represents that she believes this
is the latest in a series of needless delays. She contends that Defendant has deliberately drawn out

the discovery process, asking for numerous extensions of time and also objecting to every one of

Plaintiff’s written discovery requests. 

Defendant responds that the delays are simply a consequence of the complexity of getting

documents from a large corporation with its own in-house lawyers. It also represents that it objected

to every discovery request because it wanted to preserve its objections. According to Defendant, the

reason it wants a protective order regarding the videos is that the video footage discloses the location

of the store’s cameras, and thus blind spots. If this information were to fall into less-than-honest

hands, it could be used to further fraudlent lawsuits or shoplifting.

Defendant filed this Motion for Protective Order, seeking to maintain the confidentiality of

the video footage. Plaintiff, in turn, filed her Motion to Compel, which seeks an order compelling

production of the video footage without a protective order. The Court considers each motion in turn. 

II. Protective Order

Under the Federal Rules of Civil Procedure, parties are entitled to obtain discovery regarding

“any nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1).

Relevant information is defined broadly and need not be admissible at trial, as long as it is

reasonably calculated to lead to admissible evidence. Id.

Nevertheless, Federal Rule of Civil Procedure 26(c)(1) provides that courts may issue

protective orders limiting discovery for good cause. Fed. R. Civ. P. 26(c)(1). Rule 26(c)(1)

“essentially operates to balance the public’s interest in open proceedings against an individual’s

private interest in avoiding ‘annoyance, embarrassment, oppression, or undue burden or expense .

. . .’” Felling v. Knight, 211 F.R.D. 552, 554 (S.D. Ind. 2003). Potential limits include specifying

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the terms of discovery, forbidding inquiry into certain matters, limiting the scope of discovery, and

“requiring that a trade secret or other confidential research, development, or commercial information

not be revealed or be revealed only in a specified way.” Fed. R. Civ. P. 26(c). The court has

discretion in deciding when a protective order is appropriate and what degree of protection is

required. Felling, 211 F.R.D. at 554. The party seeking the protective order has the burden of

showing that good cause exists for it. Id. “In order to establish that information should be subject

to a protective order, the party seeking protection bears the burden of establishing: (1) that the

information is in fact a trade secret or confidential commercial information and (2) that there is good

cause to protect the information.” Culinary Foods, Inc. v. Raychem Corp., 151 F.R.D. 297, 300

(N.D. Ill. 1993).

As mentioned above, Defendant believes that sharing the video footage without any

confidentiality protections would expose the store to a greater risk of theft or fraudulent lawsuits.

Plaintiff raises two objections. First, that Defendant’s fear is a far-fetched cover for further delay,

which does not amount to a showing of good cause. Second, Plaintiff argues that no Federal Rule

of Civil Procedure mandates that she sign a confidentiality agreement. 

While it does appear that there may be some delay on Defendant’s part, the Court thinks

Defendant’s concerns about theft and frivolous lawsuits is concrete enough to justify a protective

order. Disclosing the footage means disclosing where all the cameras are. It would be relatively

simple for an enterprising thief or fraudster to compare the footage to the actual layout of the store,

discovering the blind spots. This is not to say that Plaintiff or her lawyer want to use this information

to commit theft or barratry. Rather, it is simply an acknowledgement that, if not kept secret, little

prevents this information from eventually finding its way into the hands of a third party that might

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use it wrongly. 

The second objection is, as Defendant admits, true. It is also irrelevant. As just mentioned,

Federal Rule of Civil Procedure 26(c) allows parties to seek protective orders to avoid annoyance,

embarrassment, oppression, and undue burdens and expenses.

 Defendant has established good cause, and the Court accordingly grants the Motion for

Protective Order. The Court orders that the video footage and the location of the cameras not be

disclosed by Plaintiff to anyone except the attorneys working on this case, the parties in this case,

any consultants and experts, deponents, and deposition and court reporters. Before the video footage 

or camera locations may be disclosed to any such persons, they must first be advised about this

Order and its protections. They also must agree, in writing, to be bound by the terms of this Order.

Plaintiff may use the video footage and camera location data for this lawsuit and nothing else. The

footage must be either destroyed or returned to Defendant within thirty days after this lawsuit has

come to a complete close, including any appeals.

In accordance with Local Rule 5-3, any party wishing to file anything under seal must file

a separate and specific motion for such protection, and the motion will only be granted for good

cause shown and if consistent with Seventh Circuit Court of Appeals case law regarding filing

materials under seal. 

III. Motion to Compel

The Motion to Compel seeks an Order compelling Defendant to hand over the video footage

without any protections for its confidentiality. As discussed above, the Motion for Protective Order

is justified, and the Court accordingly denies the Motion to Compel. Moreover, Defendant has stated

that it has no objection to producing the video footage so long as it is protected.

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IV. Costs and Fees

In the context of protective orders sought under Federal Rule of Civil Procedure 26 and

motions to compel brought under Rule 37, the victor is usually entitled to reasonable costs and fees

spent in litigating the motion. See; Fed. R. Civ. P. 37(a)(5); Fed. R. Civ. P. 26(c)(3) (“Rule 37(a)(5)

applies to the award of expenses.”). Federal Rule of Civil Procedure 37(a)(5) provides that, if the

motion to compel or motion for protective order is granted, “the court must, after giving an

opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the

party or attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred

in making the motion, including attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(A). Fees may not be

awarded if “the movant filed the motion before attempting in good faith to obtain the disclosure or

discovery without court action,” “the opposing party’s nondisclosure, response, or objection was

substantially justified,” or “other circumstances make an award of expenses unjust.” Id.

37(a)(5)(A)(i)-(iii).

Though Plaintiff’s desire to get the video material is understandable, her objection to the

confidentiality agreement was not justified. Indeed, she seems to have withdrawn her consent to the

agreement not out of any concern regarding her use of the video footage, but simply out of a desire

to get back at Defendant for asking for so many extensions of time. Delays are indeed frustrating,

and Defendant has asked for many throughout the course of discovery. But this does not add up to

a position that is substantially justified. In light of this, the Court finds that none of the exceptions

apply and accordingly awards Defendant reasonable costs and attorney fees expended in litigating

both the Motion for Protective Order and the Motion to Compel.

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V. Conclusion

For these reasons, the Court GRANTS Defendant’s Motion for Protective Order [DE 15]

and DENIES Plaintiff’s Motion to Compel [DE 18]. The Court further ORDERS Defendant to file

an itemization of reasonable costs and fees, including attorney fees, incurred in litigating these two

motions by September 9, 2014. Any response by Plaintiff is due September 23, 2014.

SO ORDERED this 26th day of August, 2014.

s/ Paul R. Cherry 

MAGISTRATE JUDGE PAUL R. CHERRY

UNITED STATES DISTRICT COURT

cc: All counsel of record

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