I. Introduction

The instant case is a products liability litigation. The Plaintiff alleges he received LASIK eye surgery, after which he developed Diffuse Lamellar Keratitis (DLK) as a result of defective surgical blades used in his surgery. B&L allegedly manufactured the defective blades, Laser Vision Centers, Inc. (LVC) is alleged to have distributed the blades, and Midwest Sterilization (Midwest) is alleged to have been responsible for cleaning and sterilizing the blades used on the Plaintiff.

A. B&L’s Motion

B&L moves for a protective order regarding production and distribution of documents in its prediscovery disclosure statement, as well as documents produced in response to requests for production. B&L claims certain documents that may be the subject of discovery are confidential or contain highly sensitive, proprietary, and competitive commercial or personal information, as well as trade secrets. B&L attached to its motion a copy of the proposed Confidentiality Agreement and the affidavit of Michael A. Santalucia, Vice President of Global Regulatory Affairs for B&L B&L attached to its reply brief the declaration of Richard E. Alexander, special counsel to the corporation. Midwest does not object to B&L’s motion, see doc. # 43, and LVC does not object to B&L’s motion, subject to three revisions to B&L’s proposed Confidentiality Agreement, see doc. #44.

The Plaintiff opposes B&L’s motion. See doc. #47-1. The Plaintiff asserts that B&L has not yet produced any documents and has ignored the deadlines for initial disclosures. The Plaintiff argues B&L has not met the “heavy burden” it bears to show a particular and specific need for protection. The Plaintiff cites a Third Circuit Court of Appeals case providing seven factors a court may consider in determining whether good cause exists for entering a confidentiality order. The Plaintiff also argues that information sharing with other litigants will ensure validity of discovery and will alert others potentially injured by the product at issue here. The Plaintiff contends B&L’s proposed agreement seeks to prevent dissemination of information the public has a right to know.

In its reply, B&L points out that the Plaintiff has yet to request a single document, but that the instant motion was brought in anticipation of document requests it expects to receive. B&L argues it has shown good cause for a protective order. B&L claims it has taken and continues to take special measures to preserve the confidentiality of its proprietary information. B&L points out that, without discovery requests from other parties, it is impossible for it adequately to identify every document it seeks to protect, claiming it is being asked to “negative issue spot” and identify documents that have not yet been demanded. B&L further points out that the Plaintiff’s alleged public health and public interest concerns do not outweigh its need for a protective order, arguing that the Plaintiff’s public health concerns are overstated.

*2 The Santalucia affidavit explains the highly competitive nature of developing, designing, manufacturing, and selling the devices used in refractive surgery. See doc. #37, Ex. A ¶ 7. The affidavit states B&L owns technological and marketing information in many fields that would be valuable to its competitors throughout the world. Id. The affidavit states that certain categories of documents will be produced in this litigation, noting that many documents falling into these categories contain sensitive proprietary information that would give competitors insight into many of B&L’s trade secrets. Id. ¶ 11. Much of the information is only made available to a number of B&L personnel and consultants, with whom confidentiality agreements are in place and only as needed to conduct work assignments from B&L. Id. In the affidavit, Santalucia submits that he believes all B&L employees are required to execute a confidentiality agreement. Id. ¶ 12. Finally, Santalucia states that B&L does not oppose the Plaintiff’s legitimate use of its business information as part of the discovery process, but is concerned about the damage to its business that would result if certain proprietary information entered the public domain. Id. ¶ 17.

The Alexander declaration responds to the Plaintiff’s argument that the protective order would preclude counsel from communicating with plaintiff’s counsel in similar cases and would hamper counsel’s ability to advise potential victims of documents supporting their claims. See doc. #51, Ex. ¶ 3. The declaration asserts that these concerns have no application in this case due to the paucity of litigation following B&L’s withdrawal of the blades from the market, and the improbability of future related lawsuits. Id. ¶¶ 5-9. Alexander states B&L will stipulate that it will advise Plaintiff’s counsel in the event a new suit is filed regarding the withdrawn blades, and also will stipulate that the protective order will be without prejudice to counsel’s application to share information with counsel for other plaintiffs in the event of a newly filed case. Id. ¶ 9. Responding to the Plaintiff’s claim of a desire to advise other potential victims of documents supporting their claims, Alexander avers that any lawsuits by other victims would be time-barred. Id. ¶ 10. The Alexander affidavit has attached to it an affidavit from a Texas case, which explains an FDA investigation related to this case. See doc. #51, Ex. at 5-10.

B. Plaintiff’s Motion

The Plaintiff moves for a protective order, to compel B&L to produce initial disclosure discovery, and for sanctions for B&L’s alleged failure to produce this discovery. Specifically, the Plaintiff argues that B&L was asked, but refused, to takes steps to preserve electronically stored information. The Plaintiff and LVC requested an agreement that the parties would “advise their respective clients to take every reasonable step to preserve electronic evidence or information until the final resolution of this matter.” B&L refused to sign the agreement. The Plaintiff presents this motion to prevent destruction of B&L’s electronic data. Additionally, the Plaintiff seeks to compel B&L to produce documents as part of B&L’s Rule 26(a)(1) disclosures, and seeks sanctions for B&L’s failure to make these disclosures. The Plaintiff also argues that, by refusing to produce the required documents, “B&L now ostensibly claims that every document in its possession is subject to a proposed Confidentiality Agreement,” even though non-confidential materials certainly exist. The Plaintiff seeks sanctions against B&L for failing to produce the required documents. LVC joins in the Plaintiff’s motion. See doc. #42.

B&L responds that the stipulation regarding electronically stored information was not necessary, for litigants have a duty to preserve documents or other evidence relevant to the issues in dispute. B&L points out that the stipulation would be duplicative of the parties’ duties under the law. B&L next argues its initial disclosures complied with both the plain language and the spirit of Rule 26, which requires a party to provide copies of, or a description by category and location of, documents and other materials that a party may use to support its claims or defenses. B&L asserts that it does not, through its proposed Confidentiality Agreement, seek to designate all documents as confidential. Finally, B&L argues the Plaintiff’s motion for sanctions must be denied.

*3 The Plaintiff replies that the Court should exercise its discretion and order B&L to protect and preserve all electronic data. The Plaintiff claims he has demonstrated the necessity of such an order, stating B&L’s refusal to enter into the stipulation, coupled with its inadequate initial disclosures, illustrates the necessity. The Plaintiff also contends B&L’s initial disclosures do not comply with Rule 26(a)(1)’s specificity and location requirements.

II. Discussion

A. B&L’s Motion

Fed. R. Civ. P. 26(c) provides, in relevant part, “Upon motion by a party or by the person from whom discovery is sought, ... and for good cause shown, the Court in which the action is pending ... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Rule 26(c)(7) permits the court to order “that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a designated way.” As noted in Rule 26(c), the Court may not enter a protective order except upon a showing of good cause, which requires “a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.” 8 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2035 (2d ed. 1994); see also Gen. Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204 (8th Cir. 1973). In a similar context, the Eighth Circuit has observed that “the party opposing discovery must show that the information is a ‘trade secret or other confidential research, development, or commercial information,’ under Rule 26(c)(7) and that its disclosure would be harmful to the party’s interest in the property.” In re Remington Arms Co., Inc., 952 F.2d 1029, 1032 (8th Cir. 1991).

In this case, B&L is not seeking to deny the Plaintiff access to documents. Instead, it seeks to prevent parties from disseminating the sensitive information involved herein to those outside this lawsuit. The Plaintiff argues B&L has not made a particularized demonstration of fact sufficient to show good cause for entry of a protective order. The Court disagrees. B&L seeks protection of documents relating to customer information, sales records, product development and testing, and product manufacturing and processes. See doc. #37, Ex. A ¶ 10. These categories of information fall within the “widely relied-upon definition of a trade secret” contained in the 1939 edition of the Restatement of Torts, section 757 cmt. b. See Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 474-75 (1974). Although B&L is at this time requesting a protective order even before receiving discovery requests, and is not able to provide the precise proprietary nature of all documents to be covered by a protective order, such is not fatal to its motion. A case the Plaintiff cites in opposition to B&L’s motion, Pansy v. Borough of Stroudsburg, 23 F.3d 772, 787 n.17 (3d Cir. 1994), approved the possibility of using “umbrella protective orders in cases involving large-scale discovery” upon a threshold showing of good cause. The court noted that, after the documents are delivered, “the opposing party would have the opportunity to indicate precisely which documents it believed not to be confidential, and the party seeking to maintain the seal would have the burden of proof with respect to those documents.” Id. The Court will provide the Plaintiff with such an opportunity in this case, should the need arise. Furthermore, B&L’s proposal for release of some information to litigants in related cases appears to alleviate most of the concerns the Plaintiff has with regard to protection of the information at issue here.

*4 Liberal discovery “is provided for the sole purpose of assisting in the preparation and trial, or the settlement, of litigated disputes.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34 (1984). A significant potential for abuse of discovery exists, and that “abuse is not limited to matters of delay and expense; discovery also may seriously implicate privacy interests of litigants and third parties.” Id. at 34-35. Due to liberal discovery and its attendant potential for abuse, courts are given broad discretion “to decide when a protective order is appropriate and what degree of protection is required.” Id. at 36. The Federal Rules of Civil Procedure provide for protection of trade secrets and other confidential information, and allow a court to fashion “any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c) & (c)(7).

B&L sufficiently has shown good cause for protection of its commercially sensitive and confidential information. Seedoc. #37, Ex. A; doc. #51, Ex. This case has a strong potential to yield sensitive trade secrets and proprietary and competitive commercial or personal information. B&L’s proposed Confidentiality Agreement does not preclude the Plaintiff from discovering B&L’s proprietary information; indeed, B&L does not oppose the Plaintiff’s legitimate use of its business information as part of the discovery process. See doc. #37, Ex. A ¶ 17. Plaintiffs will not be unduly prejudiced by a protective order.

Although the Pansy court delineated seven factors for courts to review in determining whether good cause exists, see 23 F.3d at 787-91, the Third Circuit also has recognized that the district court is in the best position determine what factors are relevant to its decision, and “that the analysis should always reflect a balancing of private versus public interests.” Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995). The Court is mindful of the public interest in access to judicial proceedings in civil cases. See Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978) (“It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.”). However, the Court also must consider B&L’s interest in maintaining the confidential nature of its proprietary information, which may override the public’s right of access. See id. at 598 (noting “the right to inspect and copy judicial records is not absolute”). The Court’s first priority is protection of the litigants in this case, not the general public’s unspecified need for B&L’s proprietary information. B&L has proposed a reasonable solution that allows discovery to proceed, but also permits limited disclosure of the information to parties outside this lawsuit.

Based on the foregoing, the Court concludes a protective order or confidentiality agreement is appropriate in this case. The Court concludes B&L’s proposed Confidentiality Agreement [doc. #37, Ex. B], combined with LVC’s proposed revisions, sufficiently address the issues and concerns involved here. The Court will allow the parties an opportunity to enter into the Confidentiality Agreement, with revisions, on their own. Should the parties be unable or unwilling to do so by on or before May 19, 2006, the Court will enter a protective order.

B. Plaintiff’s Motions

1. Motion for Preservation Order

The Plaintiff first seeks an order from the Court to prevent B&L from destroying relevant electronic data. While the Court agrees with the Plaintiff that electronic data compilations and documents are no less discoverable than paper records, see, e.g., Rowe Entm’t, Inc. v. William Morris Agency, Inc., 205 F.R.D. 421, 428 (S.D.N.Y. 2002), the Court notes that B&L has a duty to preserve any such evidence, even absent a protective order from the Court, seeSilvestri v. Gen. Motors Corp., 271 F.3d 583, 591 (4th Cir. 2001) (“The duty to preserve material evidence arises not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.”). Contrary to the Plaintiff’s argument, the fact that B&L did not enter into the Agreement, without more, does not indicate a refusal by B&L to preserve information or show that B&L is destroying evidence. B&L has not, by its actions, made it clear that it has no intention to prevent destruction of relevant electronic data. The Plaintiff has presented no evidence that B&L is destroying any documents. Absent evidence that B&L is not acting in accordance with its duty to preserve, such duty “should be sufficient to ensure the preservation of relevant evidence in [B&L’s] custody or control.” In re Tyco Int’l, Ltd., Sec. Litig., No. 00MD1335, 2000 WL 33654141, at *2 (D.N.H. July 27, 2000). The Court concludes a preservation order in this case would be unnecessarily duplicative. The Plaintiff’s motion is denied.

2. Motion to Compel and for Sanctions

*5 Second, the Plaintiff seeks an order compelling a more thorough response from B&L with regard to B&L’s Rule 26(a)(1) initial disclosures, as well as sanctions. Rule 26(a)(1) provides, in pertinent part, that

The advisory committee note makes clear that Rule 26(a)(1)(B) does not require production of documents. See Fed. R. Civ. P. 26(a)(1) advisory committee’s note (1993 amendments). The note continues: “If ... only the description is provided, the other parties are expected to obtain the documents desired by proceeding under Rule 34 or through informal requests.” Id.

The Court concludes the Plaintiff has failed to show B&L’s initial disclosure was insufficient under the Federal Rules. B&L provided a four-page summary document, which meets the requirement that it provide “a description by category and location of” documents and other relevant materials in its possession. Fed. R. Civ. P. 26(a)(1)(B). Also, B&L’s proposed Confidentiality Agreement is not at odds with the rules related to initial disclosures. In fact, the subject matter of the proposed Confidentiality Agreement further supports the propriety of B&L’s decision to provide a summary, rather than documents, as its initial disclosure. B&L also has a duty to supplement its initial disclosures under Rule 26(e), a duty that will remain after execution of the Confidentiality Agreement or entry of the Court’s protective order. Further, the Plaintiff is entitled to seek documents by proceeding under Fed. R. Civ. P. 34. In sum, the Court concludes the Plaintiff’s motion to compel must be denied. Consequently, the motion for sanctions also is denied.

III. Conclusion

B&L’s motion for a protective order is granted. After execution of the Confidentiality Agreement or entry of a protective order, however, should the Plaintiff believe an item of evidence should not be treated as confidential, after consultation with the other parties, the Plaintiff may follow the procedure set forth in Pansy, 23 F.3d at 787 n.17, to seek relief. Further, the Plaintiff’s motion for a protective order, to compel, and for sanctions, is denied. The Court, however, remains mindful of some of the difficulties relating to discovery in this case. Should the need arise, the Court will entertain motions by the parties to extend discovery deadlines or other such relief the parties find necessary. Accordingly, it is hereby

ORDERED that Defendant Bausch & Lomb’s motion for a protective order [doc. #37] is GRANTED.

IT IS FURTHER ORDERED that the parties shall execute and file a Confidentiality Agreement, pursuant to the terms of this ORDER, by on or before May 19, 2006. Should the parties fail or be unable to execute and file this Confidentiality Agreement, the Court, sua sponte, will enter a protective order that will apply to discovery in this case.

*6 IT IS FURTHER ORDERED that Plaintiff Craig Kendall’s motion for a protective order, to compel, and for sanctions [doc. #40] is DENIED.