A Lesson About Protective Orders

In Glock v. Glock, Inc., Case No. 14-15601 (decided August 17, 2015), the United States Court of Appeals for the Eleventh Circuit addressed a novel about the use of discovery taken in the United States to aid a case filed overseas. However, the more useful lesson of that case is about protective orders.

Glock, Inc. is the well-known manufacturer of guns. In 2011, Gaston Glock and Helga Glock began a divorce proceeding in Austria. In connection with those proceedings, Helga Glock filed an action in the United States under 28 U.S.C. § 1782 seeking to discover evidence from Glock, Inc. and two related companies. Under that statute, parties in a proceeding pending in foreign courts can seek the aid of a United States federal court to obtain discovery relevant to that foreign proceeding. The Glock entities eventually produced materials to Helga Glock. Those materials were marked confidential pursuant to a protective order which limited the use of the materials “to proceedings to which [Helga Glock] is a party.” Opinion, p. 3. At a later point, Helga Glock filed a RICO action in federal court in the United States against the Glock entities. In connection with that case, she sought to use the materials she obtained under § 1782. The magistrate judge initially allowed her to make use of those materials. However, the district court judge sustained the objections of the Glock entities and concluded that Helga Glock could not use in a United States civil case the documents she had obtained pursuant to § 1782 in aid of a foreign proceeding.

The Court of Appeals reversed. The Court acknowledged that the issue was a novel one that had not been previously addressed by another federal circuit court. Opinion, pp. 8-9. The Court found in the text of § 1782 no limitations on the use of documents obtained pursuant to § 1782. Finding no limitation in the text of § 1782, the Court concluded that, as a general rule, parties may use any evidence they lawfully possess. Since Helga Glock lawfully possessed documents she obtained pursuant to § 1782, she could use them to pursue a civil case in the United States.

Perhaps of more significance, the Court concluded that the protective order entered in the proceeding pursuant to § 1782 did not prohibit Helga Glock from using those documents in her RICO case. The protective order only limited Helga Glock to using the documents she had obtained in a proceeding to which she was a party. Opinion, p. 16. Because she was a party to the RICO case, she could use the documents obtained in that proceeding. Opinion, p. 17.

Perhaps if the protective order had provided that Helga Glock could use the documents she obtained under § 1782 only in the Austrian divorce proceeding, that limitation would have been upheld. The lesson for litigators here is to select carefully the language in a protective order.

The Opinion is available at http://media.ca11.uscourts.gov/opinions/pub/files/201415701.pdf

 

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