*1 This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court, and Standing Order 13-02.

Now before the Court is Defendant's Motion for Protective Order Regarding Information Covered by the Tennessee Financial Records Privacy Act [Doc. 130] and Plaintiffs’ Motion to Appoint Interim Counsel [Doc. 159]. The parties appeared before the undersigned on February 23, 2023, for a motion hearing.[1] Attorneys Donald Vowell and William Hickerson appeared on behalf of Plaintiffs. Attorneys Kristine Roberts and Robert Tom appeared on behalf of Defendant.[2] For the reasons explained below, the Court GRANTS Defendant's motion [Doc. 130] and DENIES WITHOUT PREJUDICE Plaintiffs’ motion [Doc. 159].

I. ANALYSIS

The Court will address these motions in the order in which they were filed.

A. Defendant's Motion for Protective Order [Doc. 130].

The instant dispute relates to Defendant's signature cards. Defendant explained that the bank accounts subject to this lawsuit were originally opened with National Bank of Gatlinburg. Throughout the years, other banks acquired National Bank of Gatlinburg, with Defendant being the latest owner. Defendant requested that its accountholders sign a signature card, which contains an arbitration provision. Some accountholders signed the signature card, but others did not. On September 15, 2022, Chief Judge McDonough ordered the named Plaintiffs who signed the signature card to arbitration [Doc. 115]. Plaintiffs now seek the identity of those who did not sign the signature card (i.e., the potential class members).

*2 Defendant seeks a protective order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure “relating to the production of information which would identify those accountholders who executed a BB&T signature card” [Doc. 130 p. 1]. For grounds, Defendant believes that such disclosure would violate the Tennessee Financial Records Privacy Act, (“TFRPA”) Tenn. Code Ann. § 45-10-101, et seq., subjecting it to liability to the accountholders whose information is disclosed. Defendant states that Plaintiffs have three options in order to obtain this information: (1) demonstrate that they are the customer's agent, (2) provide written authorization pursuant to sections 104 and 105, or (3) issue a subpoena that meets the requirements of sections 106 and 107. Given that it could face liability under the TFRPA, Defendant states it has established a clearly defined and serious injury necessary for a protective order. Thus, Defendant requests a “protective order from the Court directing that [it] is not required to disclose the identity of the accountholders who signed a BB&T signature card, unless and until Plaintiffs comply with the TFRPA” [Id. at 2].

Plaintiffs respond that the information they seek (i.e., customers’ names) is not a “financial record” under the TFRPA, and therefore, Defendant is not prohibited from disclosing such information [Doc. 151]. In an attempt to alleviate Defendant's concerns, Plaintiffs have “revised their request to request the names of those individuals who remain potential class members” [Id. at 5]. Citing to a previous ruling, see [Doc. 95], Plaintiffs assert that the Court has already determined that customers’ names are not protected under the TFRPA.

In its reply, Defendant asserts that “Plaintiffs are currently in possession of the names, addresses, and account number of all accountholders—both those subject to arbitration and those that remain at issue” [Doc. 155 p. 2 (emphasis omitted)]. Defendant states that now Plaintiffs demand that it disclose financial information regarding which of the identified accountholders did or did not execute a signature card—information that it contends is protected by the TFRPA.

Rule 26(c) governs protective orders. That Rule authorizes a court to enter an order “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). A party requesting a protective order must establish good cause for such an order. Eagle v. Hurley Med. Ctr., 292 F.R.D. 466, 478 (E.D. Mich. 2013). “Good cause may exist if ‘specific prejudice or harm will result’ from the absence of a protective order.” In re Ohio Execution Protocol Litig., 845 F.3d 231, 236 (6th Cir. 2016) (quoting Father M. v. Various Tort Claimants, 661 F.3d 417, 424 (9th Cir. 2011)). “This Rule confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required.” Eagle, 292 F.R.D. at 478 (citing Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984)).

The TFRPA provides as follows:

Tenn. Code Ann. § 45-10-104. The act defines “financial records” as follows:

Tenn. Code Ann. § 45-10-102.

At the hearing, Plaintiffs acknowledged that the signature cards are financial records pursuant to the TFRPA, but they maintained their discovery requests seek only the names of those who remain as potential class members. Plaintiffs explained that they have the names and addresses of the 121 accountholders. Defendant has also disclosed that out of the 121 accountholders, fifty-two have signed the signature card and sixty-nine did not sign the signature card [Doc. 131 p. 5 n.2]. Plaintiffs further explained that those who signed the signature card will likely have to arbitrate any claims consistent with the Chief District Judge's Memorandum Opinion [Doc. 115], and those who did not sign the signature card will potentially be part of the class. Plaintiffs maintained that because they are seeking customers’ names, the TFRPA does not prevent disclosure. Asserting that they are entitled to the names, Plaintiffs argued that identifying those accountholders will allow them to discuss these matters and retrieve discovery from those who did not sign the signature card.

*3 Although Plaintiffs contend they only seek customers’ names, that is not all they seek because they have the customers’ names. As mentioned above, Plaintiffs also know that out of their list, fifty-two accountholders signed the signature card, while sixty-nine did not. What they seek is information identifying which customers signed the card (and may be subject to arbitration) and which customers did not sign the card (who may potential class members). The only way Defendant can provide this type of identifying information is by disclosing the information contained in the signature cards [Doc. 155 p. 3]. Given that Plaintiffs are seeking more than just customers’ names, the Court finds that the TFRPA applies to their request.

Plaintiffs assert that the Court's previous ruling establishes that the TFRPA does not prohibit Defendant from disclosing information. In its ruling, the Court explained:

[Doc. 95 p. 6 (footnotes omitted)]. But during the dispute, Plaintiffs specifically requested the “names and addresses of the Subject Account holders” [Doc. 82 p. 14]. The Court thus found the names and addresses, pursuant to the TFRPA, were not protected. Here, Plaintiffs acknowledge that the signature cards are “financial records” as defined by the statute, and they are seeking information from these signature cards. Renasant Bank v. Ericson, 801 F. Supp. 2d 690, 703 (M.D. Tenn. 2011) (“In other words, the [TFRPA's] prohibition is closely tethered to the contents of actual “records” or documents, rather than all financial information involving a customer.”). Given that this information is protected, the Court will enter a protective order directing Defendant that is not required to disclose the identity of the accountholders who signed the BB&T signature card, unless and until Plaintiffs comply with the TFRPA.

B. Plaintiffs’ Motion to Appoint Interim Class Counsel [Doc. 159]

Plaintiffs move pursuant to Rule 23(g)(3) for an order appointing interim class counsel on behalf of the proposed class. Plaintiffs state that the appointment of interim class counsel is necessary to protect the interests of the proposed class and their attorneys are qualified and suitable to serve as interim class counsel. In support of the motion, Plaintiffs’ attorneys have submitted declarations outlining their professional experience [Docs. 159-2 – 159-5].

Defendant opposes Plaintiffs’ motion [Doc. 161], asserting that Plaintiffs’ motion is unnecessary and contrary to established case law. In addition, Defendant claims that any determination of the adequacy of representation is premature and should be decided when Plaintiffs seek classification.

Plaintiffs reply [Doc. 163] that the appointment of interim counsel is permissive and that the decision to designate interim counsel is within the Court's discretion. Plaintiffs request that the Court exercise its discretion by appointing class counsel, especially given that Defendant is “disrupting the ordinary course of discovery and ... refuses to disclose the names of class members on the basis that Plaintiffs’ counsel has not demonstrated that they are a customer's agent” [Id. at 3 (internal quotations omitted)]. Appointing interim class counsel, Plaintiffs assert, would render their counsel agents for purposes of the TFRPA.

*4 Rule 23(g)(3) provides, “The Court may designate interim counsel to act on behalf of a putative class before determining whether to certify the action as a class action.” Fed. R. Civ. P. 23(g)(3). When evaluating interim class counsel, the Court must consider the factors set forth in Rule 23(g)(1): (i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel's knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class. Troy Stacy Enterprises Inc. v. Cincinnati Ins. Co., 337 F.R.D. 405, 409 (S.D. Ohio 2021) (citing Fed. R. Civ. P. 23(g)(1)(A)).

As both parties acknowledge, the decision to appoint interim class counsel is within the Court's discretion. The Advisory Committee notes provide that courts may appoint interim counsel “if necessary to protect the interests of the putative class.” Fed. R. Civ. P. 23(g) advisory committee's notes to 2003 amendment. Recognizing that an attorney must prepare for the certification decision, the notes explain that “[i]n some cases ... there may be rivalry or uncertainty that makes formal designation of interim counsel appropriate.” Id. Some courts have explained that the “designation of interim class counsel is particularly appropriate when a number of lawyers have filed related ‘copycat’ actions.” Gamboa v. Ford Motor Co., 381 F. Supp. 3d 853, 867 (E.D. Mich. 2019) (citing Tolmasoff v. Gen. Motors, LLC, No. 16-11747, 2016 WL 3548219, at *9 (E.D. Mich. June 30, 2016)).

In an exercise of its discretion, the Court declines to appoint interim class counsel at this time. Generally, courts appoint counsel when there are competing or similar lawsuits pending. Troy Stacy Enterprises Inc., 337 F.R.D. at 409 (“Designation of interim counsel is particularly appropriate when there have been overlapping, duplicative, or competing suits filed in other courts.”); Gamboa., 381 F. Supp. 3d at 868 (appointing interim counsel because there were four similar lawsuits).[3] Here, there are no other pending competing matters, and “at this time[,] the responsibility for protecting the interests of the class in this Court is clear.” Nutz for Candy v. Ganz, Inc., No. C 08-2873 JSW, 2008 WL 4332532, at *2 (N.D. Cal. Sept. 19, 2008)

Even so, the Court has considered whether there are other circumstances rendering the appointment of interim counsel necessary to protect the interests of the putative class. See Carrier v. Am. Bankers Life Assur. Co. of Fla., No. 05-CV-430-JD, 2006 WL 2990465, at *1 (D.N.H. Oct. 19, 2006) (“The first reason offered by Carrier and Whitman, the need to designate interim counsel to facilitate discovery and communications with putative class members, could be persuasive if it were more fully developed.”). Plaintiffs assert that the appointment of interim counsel is necessary because Defendant “is disrupting the ordinary course of discovery and ... refuses to disclose the names of the class members on the basis that Plaintiffs’ counsel has not demonstrated that they are a customer's agent [Doc. 163 p. 3 (internal quotations omitted)]. At the hearing, Plaintiffs’ attorneys explained that if the Court appointed them as interim class counsel, they could act as agents for the accountholders and seek their “financial records” pursuant to the TFRPA. The Court agrees that such would expedite the flow of discovery. But the purpose of the subpoena requirement pursuant to the TFRPA is provide the accountholder notice that someone has requested his/her financial records. This purpose outweighs expediting the flow of this specific discovery. At the hearing, Plaintiffs state that should they need to serve a subpoena for such records, the accountholder may not understand the process or may object. But the accountholder and Plaintiffs can engage in those discussions at that time. Appointing class counsel seems unnecessary here.

*5 Plaintiffs also state that the appointment of interim class counsel “would facilitate communications with unnamed class members generally, and would encourage those accountholders to freely and openly discuss potentially sensitive subjects, including their personal or corporate finances, with counsel, knowing that those communications would be subject to the attorney-client privilege” [Doc. 163 p. 4]. Plaintiffs add that the appointment will allow counsel to keep “class members apprised of the litigation and to obtain useful evidence” and would prevent Defendant from communicating with the accountholders or taking actions as alleged in the First Amended Complaint [Id. (citing Doc. 87 ¶ 78)]. Plaintiffs’ latter argument is based on allegations in the First Amended Complaint, and therefore, does not constitute circumstances warranting appointment of counsel. While Plaintiffs argue that the appointment will facilitate communications, help keep class members apprised, and obtain useful evidence, the appointment of counsel is not necessary for these actions. See Fed. R. Civ. P. 23(g)(3) advisory committee's notes 2003 amendment (“Whether or not formally designated interim counsel, an attorney who acts on behalf of the class before certification must act in the best interests of the class as a whole.”). Finally, Plaintiffs’ assertion that unnamed class members will more freely discuss personal matters given the protection of the attorney-client privilege is not a sufficient basis to appoint interim counsel given that it is not clear whether such communications would necessarily be unprotected absent such appointment.

Despite the above, should circumstances change in this case that would warrant the appointment of interim counsel, Plaintiffs may refile their motion. Davis v. GEICO Cas. Co., No. 2:19-CV-2477, 2021 WL 4876213, at *3 (S.D. Ohio May 20, 2021) (denying the motion to appoint interim counsel without prejudice and explaining that the plaintiffs were “not precluded from filing a new motion for appointment of interim class counsel if the posture of the case changes”).

II. CONCLUSION

For the reasons stated above, the Court GRANTS Defendant's Motion for Protective Order Regarding Information Covered by the Tennessee Financial Records Privacy Act [Doc. 130] and DENIES WITHOUT PREJUDICE Plaintiffs’ Motion to Appoint Interim Counsel [Doc. 159].

IT IS SO ORDERED.