1st DCA Strikes Significant Blow To Plaintiffs Regarding Sharing Provisions In Wal-Mart v Endicott

In a recent opinion, the Florida First District Court of Appeal (1st DCA) has struck a significant blow to plaintiff's lawyers who routinely demand that sharing provisions be placed in Protective Orders which govern the dissemination of a corporate defendant's confidential documents. Essentially, the Court held that a sharing provision which merely identifies the type of case in which sharing is permitted is not enough. Rather, the other litigants with whom sharing is proposed must be identified by name. Moreover, it appears that these other litigants must also personally appear in the trial court and argue that not allowing them access to the documents through a sharing provision will conceal a fraud or otherwise work an injustice upon them. Without question, the 1st DCA has raised the bar which plaintiffs must meet to secure a sharing provision. The Court has also provided corporate defendants sued outside of Florida with potential ammunition to argue for a higher bar in those jurisdictions as well.

The facts of Wal-Mart v Endicott, 81 So.3d 486 (Fla 1st DCA December 9,2011), rehearing denied, January 31, 2012, are straightforward. Plaintiff sued Wal-Mart for alleged negligence in filling a prescription. The parties began the usual negotiations over the terms of a protective order to govern Wal-Mart's confidential information. The stickler was a sharing provision-Plaintiff demanded a sharing agreement, while Wal-Mart did not wish to agree to one. A hearing was held and the trial court agreed with Plaintiff, ordering a sharing provision which permitted the Plaintiff to share confidential documents with litigants involved in other cases in which it was claimed Wal-Mart employees had committed prescription errors.

Wal-Mart petitioned for a writ of certiorari, arguing that the provision allowing dissemination of Wal-Mart's confidential material to non-party litigants departed from the essential requirements of the law.

The Florida 1st DCA strongly agreed with Wal-Mart for two reasons. First, the Court found critical the fact that the sharing provision at issue did not specifically identify the collateral litigants. The Court stated that to an extent a sharing provision is used, it must be both narrowly tailored in scope and balanced with the need to protect confidential materials with the need of known, collateral litigants to view the discovery. This balancing analysis clearly cannot be done when the identity of collateral litigants is...