Drammeh et al v. Uber Technologies Inc et al, No. 2:2021cv00202 - Document 54 (W.D. Wash. 2021)
Court Description: ORDER GRANTING PLAINTIFFS' 41 MOTION TO STRIKE OR SEVER THIRD-PARTY COMPLAINT; DENYING DEFENDANTS' 33 MOTION FOR STAY; GRANTING DEFENDANTS' 35 MOTION FOR PROTECTIVE ORDER. Signed by Judge Barbara J. Rothstein.(MW) (cc: Third Party Defendants via USPS)
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Drammeh et al v. Uber Technologies Inc et al Doc. 54 Case 2:21-cv-00202-BJR Document 54 Filed 08/18/21 Page 1 of 14 1 The Honorable Barbara J. Rothstein 2 3 4 5 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 8 DRAMMEH, ET AL., 9 Plaintiffs, 10 Civil Action No. 2:21-cv-202-BJR v. ORDER GRANTING PLAINTIFFS’ MOTION TO STRIKE OR SEVER THIRDPARTY COMPLAINT; DENYING MOTION FOR STAY; GRANTING MOTION FOR PROTECTIVE ORDER 11 12 UBER TECHNOLOGIES INC., ET AL., 13 Defendants. 14 15 16 I. 17 INTRODUCTION Plaintiffs Amie Drammeh and Yusuoha Ceesay, representing the estate of Cherno Ceesay 18 19 (“Cherno”) (collectively, “Plaintiffs”) filed this lawsuit against defendants Uber Technologies, Inc. 20 (“Uber”) and Rasier LLC (together, “Defendants”) alleging that Uber’s negligence caused the 21 wrongful death of Cherno, who was a driver for Uber and was killed by two passengers. 1 Dkt. No. 22 15. Defendants have filed a third-party complaint against the passengers that killed Cherno, Olivia 23 Breanna-Lennon Bebic and Devin Kekoa Wade (“Third-Party Defendants”), alleging that they are 24 25 26 27 1 The two passengers, referred to herein as Third-Party Defendants, have not been found guilty of this crime, and their criminal trial is in October. However, for purposes of this Order, the Court will proceed as if the allegations against them are true. 1 Dockets.Justia.com Case 2:21-cv-00202-BJR Document 54 Filed 08/18/21 Page 2 of 14 1 obligated to indemnify Defendants if Plaintiffs’ claims succeed, and therefore that their third-party 2 claims should be tried together with Plaintiffs’ claims against Defendants. See Dkt. No. 31. Before 3 the Court is Plaintiffs’ motion to strike or sever the third-party complaint (Dkt. No. 41), Defendants’ 4 motion to stay this case (Dkt. No. 33), and Defendants’ motion for a protective order (Dkt. No. 35). 5 6 Having reviewed the motions, the record of the case, and the relevant legal authorities, the Court 7 will grant Plaintiffs’ motion to strike or sever the third-party complaint, deny Defendants’ motion 8 for a stay, and grant Defendants’ motion for a protective order. The reasoning for the Court’s 9 decision follows. 10 II. 11 BACKGROUND On December 13, 2020, Cherno, acting as a driver for Uber in and around Issaquah, 12 Washington, received a ride request from an Uber account created by Third-Party Defendants. Dkt. 13 14 No. 15 ¶¶ 1, 45. Although Third-Party Defendants allegedly fabricated the account and used an 15 unverified form of payment, the Uber app nevertheless allowed them to request a ride. Id. ¶ 1. 16 Cherno accepted the request and picked up Third-Party Defendants. Id. ¶ 47. While Cherno was 17 driving them to their purported destination, Third-Party Defendants stabbed Cherno in the back of 18 the neck, and the car veered off the road and hit a tree. Id. ¶¶ 47-50. Cherno died before emergency 19 personnel arrived. Id. ¶ 50. Two days later, state police found and arrested Third-Party Defendants. 20 Id. ¶ 52. Third-Party Defendants’ criminal trial is set for October 18, 2021. Dkt. No. 33 at 2-3. 21 Plaintiffs allege that Uber was aware that its drivers were at high risk of assault and failed 22 23 to take measures to prevent Cherno’s murder. See Dkt. No. 15. Defendants answered and admitted 24 that Cherno was an Uber driver using the Uber app, but denied that they were negligent. See Dkt. 25 No. 46. 26 27 Plaintiffs did not sue Third-Party Defendants, but Defendants filed a third-party complaint impleading them. See Dkt. No. 31. Defendants claim that Third-Party Defendants must indemnify 2 Case 2:21-cv-00202-BJR Document 54 Filed 08/18/21 Page 3 of 14 1 them for any damages assessed against Defendants, based on theories of contribution, equitable 2 indemnity, and contractual indemnity. See id. Plaintiffs moved to strike or sever the third-party 3 claims, arguing that they are meritless and that their inclusion in the case would prejudice Plaintiffs 4 and confuse the jury. See Dkt. No. 41. 5 It is the Court’s understanding that no discovery has yet been produced in this case, because 6 7 Defendants seek a protective order before sharing confidential commercial information with 8 Plaintiffs. See Dkts. 35, 44. Additionally, Defendant’s seek a stay of discovery until Third-Party 9 Defendants’ trial is complete. Dkt. No. 33. Defendants argue that they will not be able to take 10 discovery from Third-Party Defendants before their trial, because they will invoke their Fifth 11 Amendment right against self-incrimination. Id. at 4-5. 12 III. 13 DISCUSSION The Court will first address Plaintiffs’ motion to strike or sever Defendants’ third-party 14 15 complaint. 16 A. Plaintiffs’ Motion to Strike or Sever the Third-Party Complaint 17 Federal Rule of Civil Procedure 14, which governs third-party impleading, states that “[a] 18 defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is 19 20 or may be liable to for all or part of the claim against it.” Fed. R. Civ. Pro. 14(a)(1). “The purpose of this rule is to promote judicial efficiency by eliminating the necessity for the defendant to bring 21 22 a separate action against a third individual who may be secondarily or derivatively liable to the 23 defendant for all or part of the plaintiff's original claim.” Southwest Admrs., Inc. v. Rozay's 24 Transfer, 791 F.2d 769, 777 (9th Cir. 1986) (citation omitted). The Court has discretion to strike a 25 third-party complaint when “it will disadvantage the existing action.” Id. (citation omitted). 26 Furthermore, the third-party plaintiff must show that Third-Party Defendants “[are] or may be 27 liable” for the claims brought against it. The Ninth Circuit has interpreted this to mean that “there 3 Case 2:21-cv-00202-BJR Document 54 Filed 08/18/21 Page 4 of 14 1 must . . . exist a substantive basis for the third-party defendant's liability.” Kim v. Fujikawa, 871 2 F.2d 1427, 1434 (9th Cir. 1989). Therefore, in addition to considering the effect a third-party 3 complaint would have on the existing action, the Court has the discretion to strike the complaint if 4 it fails to state a claim. 5 6 Defendants’ third-party claims are essentially three mechanisms for shifting liability to 7 Third-Party Defendants: contribution, equitable indemnity, and contractual indemnity. Plaintiffs 8 move to strike or sever all three claims. The Court addresses each claim in turn. 9 10 11 1. Contribution Contribution is “the right of one who has paid a common liability to recover a portion of the payment from another tortfeasor who shares in that common liability.” Kottler v. State, 963 P.2d 12 834, 837 (Wash. 1998). Defendants argue that they have a right of contribution against Third-Party 13 14 Defendants, stating that the latter “are obligated to provide an equitable contribution to any 15 judgment or settlement herein awarded in direct proportion to the amount of tortious conduct of 16 each Third-Party Defendant.” Dkt. No. 31, ¶¶ 25-26. Plaintiffs counter that, under Washington 17 law, contribution is only available to “two or more persons who are jointly and severally liable.” 18 RCW 4.22.040(1); Dkt. No. 41 at 6. Furthermore, as Plaintiffs point out, Washington courts have 19 made clear “that joint and several liability under RCW 4.22.070 applies only to damages caused by 20 negligence and that negligent defendants may not apportion liability to intentional tortfeasors.” 21 22 Rollins v. King Cnty Metro Transit, 199 P.3d 499, 503 (Wash. Ct. App. 2009) (citation omitted). 23 The Court finds that Plaintiffs are correct that, since Third-Party Defendants are intentional 24 tortfeasors, Defendants have no claim for contribution against them. Intentional tortfeasors cannot 25 be jointly and severally liable with Defendants. 26 27 Furthermore, under the statute, joint and several liability is generally not available in Washington, “unless a listed exception applies.” Id. at 838-39; see RCW 4.22.070. Here, 4 Case 2:21-cv-00202-BJR Document 54 Filed 08/18/21 Page 5 of 14 1 Defendants do not argue or plead that any listed exception applies. Because they fail to allege a 2 basis for joint and several liability, Defendants cannot claim a right a contribution against Third- 3 Party Defendants. 4 2. Equitable Indemnity 5 The doctrine of equitable indemnity allows a plaintiff to recover attorneys’ fees from a 6 7 defendant whose acts or omissions exposed the plaintiff to litigation. “The doctrine is referred to 8 as the ABC Rule because of its three elements: (1) A acts wrongfully toward B, (2) that wrongful 9 act ‘exposes or involves B in litigation with C,’ and (3) ‘C was not connected with’ A’s ‘wrongful 10 act . . . toward B.’” Porter v. Kirkendoll, 449 P.3d 627, 636 (Wash. 2019) (quoting Manning v. 11 Loidhamer, 538 P.2d 136, 138-39 (Wash. 1975)). Importantly, “Washington courts require an 12 exceptionally close causal nexus between Party B’s exposure to litigation and the wrongful act or 13 14 omission by Party A.” Woodley v. Benson, 901 P.2d 1070, 1073 (Wash. Ct. App. 1995). Namely, 15 “[i]f Party A’s conduct is not the only cause of Party B’s involvement in the litigation, and 16 particularly if Party B’s own conduct contributed to Party B’s exposure in the litigation, an action 17 [for equitable indemnity] will not lie.” Id. (emphasis added). 18 19 Here, Defendants assert that A (Third-Party Defendants) acted wrongfully toward B (Defendants) by creating a fraudulent account in the Uber app, and that this act exposed Defendants 20 to litigation with C (Plaintiffs). See Dkt. No. 48 at 7-8. However, Defendants third-party complaint 21 22 does not contain any allegations that would establish that Third-Party Defendants’ fraudulent use 23 of the Uber app was the only cause of Defendants’ exposure to litigation. See Dkt. No. 31 ¶¶ 18- 24 24. 25 26 27 Furthermore, no reasonable jury could find that Defendants were exposed to this litigation solely because Third-Party Defendants created a fake Uber account. Such a finding would necessarily require a determination that Third-Party Defendants’ murder of Cherno had no part in 5 Case 2:21-cv-00202-BJR Document 54 Filed 08/18/21 Page 6 of 14 1 causing Defendants’ exposure to this wrongful death action. No reasonable jury could find that to 2 be true. Additionally, Defendants’ claim for equitably indemnity cannot be predicated on the act 3 of murdering Cherno, because that was an act committed by A (Third-Party Defendants) against C 4 (Plaintiffs), not against B (Defendants). Therefore, Defendants cannot plausibly state a claim for 5 6 equitable indemnity, and the Court strikes that claim. 7 3. 8 Defendants’ final theory of liability, contractual indemnity, rests on a provision in Uber’s 9 Terms of Service contract, which users must accept before using the Uber app, that reads: 10 You agree to indemnify and hold Uber and its affiliates and their officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees), arising out of or in connection with: (i) your use of the Services or services or goods obtained through your use of the Services; (ii) your breach or violation of any of these Terms; (iii) Uber's use of your User Content; or (iv) your violation of the rights of any third party, including Third Party Providers 11 12 13 14 15 Contractual Indemnity Dkt. No. 31 ¶ 9. Plaintiffs argue (1) that the provision is insufficiently clear to indemnify Uber 16 against its own negligence, and (2) that, even if the provision does purport to indemnify Uber, it is 17 void as against public policy. 2 See Dkt. No. 41 at 11-14; Dkt. No. 52 at 6-8. The Court will address 18 these arguments in turn. 19 20 21 22 23 24 25 26 27 2 Plaintiffs also argue that Defendants’ contractual indemnity claim is not ripe, because Defendants have not made any payment to Plaintiffs in the form of a settlement or an award of damages. Central Wash. Refrigeration, Inc. v. Barbee, 946 P.2d 760, 764-65 (“It is settled law that indemnity actions accrue when the party seeking indemnity pays or is legally adjudged obligated to pay damages to a third party.”). However, the Court agrees with Defendants that, as a general matter, unripe indemnity claims may be brought against third-party defendants in the same action as the underlying claim against which a third-party plaintiff seeks indemnification, if impleading is in line with Rule 14’s goal of judicial efficiency. See Dkt. No. 48, at 6-7. 6 Case 2:21-cv-00202-BJR Document 54 Filed 08/18/21 Page 7 of 14 1 a. 2 3 Uber’s Indemnification Provision Covers Injuries Caused by Its Own Negligence. Plaintiffs argue that Uber’s indemnification provision should not be read to include the 4 company’s own negligence because the provision “does not expressly and unequivocally commit 5 the customer to indemnify Uber for losses resulting from Uber’s own negligent acts.” Dkt. No. 52 6 at 7. However, an indemnification provision need not use the word “negligence” to be clear and 7 8 unequivocal. See id. at 837; Scott v. Pacific West Mountain Resort, 834 P.2d 6, 9-10 (Wash. 1992) (“[M]any courts have held that clear and unambiguous exculpatory language can eliminate 9 10 negligence liability without expressly using the word ‘negligence.’ . . . We agree.”). Furthermore, 11 Plaintiffs do not cite case law supporting their interpretation of the language in the Uber contract. 12 In Scott, a case Plaintiffs rely on elsewhere, the Washington Supreme Court held that an 13 indemnification provision purporting to “‘hold harmless . . . from all claims’ logically include[d] 14 negligent conduct.” Scott, 834 P.2d at 10. Similarly, Uber’s provision states that users agree to 15 “indemnify and hold Uber . . . harmless from any and all claims, demands, losses, liabilities, and 16 expenses” arising out of their use of Uber’s services. Dkt. No. 31 ¶ 9. Accordingly, the Court finds 17 18 19 20 that Uber’s indemnification provision covers injuries resulting from its own negligence. b. Uber’s Indemnification Provision Is Subject to the Same Public Policy Standard as an Exculpatory Clause. Plaintiffs argue that, if the provision in Uber’ Terms of Service is read to indemnify Uber 21 22 23 24 25 26 27 for its own negligence, then the provision would be akin to an exculpatory clause. Exculpatory clauses are invalid as against public policy if the six factors set forth in Wagenblast are present: [T]he attempted but invalid exemption involves a transaction which exhibits some or all of the following characteristics. [1] It concerns a business of a type generally thought suitable for public regulation. [2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. [3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. [4] As a result 7 Case 2:21-cv-00202-BJR Document 54 Filed 08/18/21 Page 8 of 14 1 2 3 4 5 6 7 8 of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. [5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. [6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents. Wagenblast v. Odessa Sch. Dist., 758 P.2d 968, 971 (Wash. 1988) (citation omitted). Defendants’ primary response is that indemnification provisions are distinct from exculpatory clauses, and thus these six factors should not be applied. Dkt. No. 48 at 4-6. 9 10 Defendants attempt to distinguish the case on which Plaintiffs most heavily rely, Scott, by arguing 11 that “[i]n holding that the exculpatory clause was valid, the court rejected the plaintiffs’ attempt to 12 argue that the ‘hold harmless’ language means that the provision was an indemnity clause and not 13 an exculpatory clause.” Id. at 5. Defendants’ interpretation attempts to bypass the explicit language 14 of Scott downplaying any distinction between exculpatory and indemnification provisions. 15 Specifically, the Scott court stated that, “although there is a distinction in definition between 16 exculpatory clauses and indemnity clauses, in these settings they both attempt to shift ultimate 17 18 19 responsibility for negligence and so are generally construed by the same principles of law.” Scott, 758 P.2d at 10. 20 The relevant provision in Uber’s Terms of Service contains both the word “indemnify” and 21 the term “hold harmless,” indicating that the same provision is intended to both indemnify and 22 23 exculpate. Thus, the contract itself recognizes an equivalence between these two concepts. Moreover, an indemnification clause would have the same practical effect as an exculpatory clause 24 25 26 27 in this context. As explained in Scott, “[a]n exculpatory clause purports to deny an injured party the right to recover damages from the person negligently causing the injury. An indemnification clause attempts to shift responsibility for the payment of damages to someone other than the 8 Case 2:21-cv-00202-BJR Document 54 Filed 08/18/21 Page 9 of 14 1 negligent party, usually back to the injured party, thus likely producing the same result as an 2 exculpatory clause.” Id. Based on this analysis, and the lack of any other relevant support for 3 Defendants’ position, the Court finds that Uber’s indemnification provision is subject to the public 4 policy analysis set forth in Wagenblast. 5 6 7 8 c. Conducting a Public Policy Analysis of Uber’s Indemnification Provision Would Be Inappropriate at This Stage. Although the Court has determined that Uber’s indemnification clause should be scrutinized under the Wagenblast factors, the Court lacks sufficient information to apply those factors at this 9 10 stage. The Wagenblast analysis calls for the Court to determine the nature of transactions between 11 Uber and its customers and the characteristics of the service Uber provides to the public. Currently, 12 the facts germane to this analysis are disputed by the parties. For example, in their Answer, 13 Defendants deny the allegation that “Uber offers to carry and transport members of the general 14 public and holds itself out to the public as an on-demand form of transportation available to anyone 15 who wants to use it.” See Dkts. 15 ¶ 35; 46 ¶ 35. Defendants similarly deny that Uber functions 16 like a taxi service. See Dkts. 15 ¶ 36; 46 ¶ 36. Defendants admit only that Uber’s app is “available 17 18 19 to the general public to download . . . and that neither independent drivers nor riders are charged a fee to download [the app].” Dkt. No. 46 ¶ 38. 20 In essence, the parties dispute whether Uber is a transportation company, akin to a taxi 21 service, or whether it is a technology company that connects independent drivers to customers but 22 23 does not itself provide transportation. See Dkt. No. 46 at 12 (“Uber is a technology company and not a transportation company.”). The Court cannot determine, for the purpose of a public policy 24 25 26 27 analysis, whether the service Uber provides is essential to the public without first determining what that service is and how it is provided. That determination, however, cannot be made based on the facts currently before the Court. 9 Case 2:21-cv-00202-BJR Document 54 Filed 08/18/21 Page 10 of 14 1 4. 2 Defendants’ Third-Party Claim Is Likely to Confuse the Jury and Disadvantage the Existing Action. Plaintiffs argue that, regardless of whether Defendants’ third-party claims are found to be 3 4 meritless, the Court should nevertheless strike or sever them because including them would place 5 Plaintiffs at a disadvantage in the existing action. Dkt. No. 52 at 8-10. Plaintiffs’ overarching 6 argument is that “[Defendants’] true purpose in trying to implead [Third-Party Defendants] is to 7 8 confuse the issues and jury, and to delay litigation.” Id. at 10. Plaintiffs reason that “Uber’s claims against [Third-Party Defendants] ‘are of a different character’ than Plaintiffs’ negligence claims 9 10 against Uber.” Id. Whereas Plaintiffs’ claims focus on Uber’s relationship with its drivers, 11 Defendants’ claims depend on the company’s relationship with its passengers. 3 Dkt. No. 52 at 8 12 (citation omitted). 13 Rather than dispute this characterization of the issues presented by Plaintiffs’ complaint and 14 the third-party complaint, Defendants argue that striking their third-party complaint is “premature” 15 because nothing is yet being presented to a jury, that there is some factual overlap between their 16 claims and Plaintiffs’, and that it is more efficient to decide these common questions of fact in a 17 18 single action. Dkt. No. 48 at 12-13. 19 The Court agrees with Plaintiffs. The third-party claims present entirely different issues. 20 Rather than achieving efficiency, keeping the third-party claims in this action would unduly 21 complicate discovery and trial. Most importantly, presenting Defendants’ third-party claims would 22 run the risk of confusing the jury. Defendants last remaining third-party claim (contractual 23 24 3 25 26 27 The Court notes that other “[c]ourts [have] especially disapproved of third-party claims asserted against parties who are plainly judgment-proof” (Dkt. No. 52 at 9), see, e.g., Valdez v. Farmington, 580 F. Supp. 19, 21 (D.N.M. 1984) (court may refuse impleader where third party is, “in reality, a ‘strawman defendant,’” and impleader “is simply a litigation tactic”), a fact which is abundantly clear in the case before the Court. 10 Case 2:21-cv-00202-BJR Document 54 Filed 08/18/21 Page 11 of 14 1 indemnity) is a contract claim against Uber passengers. Plaintiffs’ complaint brings tort claims on 2 behalf of an Uber driver. There is an obvious risk that a jury would not fully understand the 3 separation between the two claims and would instead assume that they were being asked to decide, 4 between Uber or Third-Party Defendants, who was more responsible for Cherno’s death, which 5 6 would be a misapprehension of the nature of this case and would prejudice Plaintiffs’ action. It is 7 far more appropriate for Defendants to bring their claims in a separate action. The Court will sever 8 Defendants contractual indemnity claim against Third-Party Defendants from this action. 4 9 B. 10 11 Defendants’ Motion for a Protective Order Defendants have moved for a protective order shielding its discovery responses that include “confidential, proprietary and/or commercially-sensitive information” from public disclosure. See 12 Dkt. No. 35. Defendants request that the protective order cover, among other things, documents 13 14 related to its financial condition and revenue, copies of settlement agreements and insurance 15 policies, and incident reports from Uber’s “independent drivers.” Id. at 6-8. In drafting their 16 proposed protective order, Defendants largely adhered to the Western District of Washington’s 17 Model Stipulated Protective Order. Defendants made two modifications to the Model Protective 18 Order: first, they added language to the effect that sanctions for discovery practices are appropriate 19 only “after the party has had a reasonable opportunity to cure any prohibited designation.” Dkt. 20 No. 50 at 8; second, Defendants added a requirement that Plaintiffs make challenges to Defendants’ 21 22 confidentiality designations within 30 days of the designation. Id. at 9. 23 24 25 26 27 4 Likewise, Defendants’ claim for a declaratory judgment as to “the respective liabilities of [Defendants] and Third-Party Defendants for such damages [claimed by Plaintiffs]” (Dkt. No. 31 ¶ 33) would essentially ask the jury to apportion fault between Defendants and Third-Party Defendants as though they are all defendants to Plaintiffs’ claims, when in fact Third-Party Defendants are not. Therefore, the Court will sever the claim for declaratory judgment because it is likely to confuse the jury. 11 Case 2:21-cv-00202-BJR Document 54 Filed 08/18/21 Page 12 of 14 1 Federal Rule of Civil Procedure 26(c)(1) empowers the Court to issue a protective order 2 shielding a party’s discovery responses from public disclosure when the party demonstrates “good 3 cause.” Fed R. Civ. P. 26(c)(1). In demonstrating good cause, the moving party must point to a 4 “specific prejudice or harm [that] will result if no protective order is granted.” Phillips ex rel. 5 6 Estates of Byrd v. General Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002). The Rule 7 specifically authorizes protective orders that “requir[e] that a trade secret or other confidential 8 research, development, or commercial information not be revealed or be revealed only in a specified 9 way.” Fed R. Civ. P. 26(c)(1)(G). 10 11 Defendants have convincingly demonstrated that many of their discovery responses will contain proprietary information about how the Uber app functions, Uber’s financial condition, and 12 13 14 Uber’s business dealings. See Dkt. No. 35 at 6-8. Plaintiffs’ arguments in response are largely misplaced. For example, Plaintiffs contend that “[b]y law, Plaintiffs are entitled to Uber’s insurance 15 policies.” Id. at 10. However, Defendants are not seeking to withhold any insurance or other 16 information from Plaintiffs; their protective order simply shields that information from public view. 17 Similarly, Plaintiffs argue that “Uber is not entitled to an ‘Attorneys’ Eyes Only’ (AEO) protective 18 19 order,” but Defendants are not seeking an AEO designation for any documents, and they explicitly disclaim that practice. See Dkt. No. 35 at 13 n.4. Plaintiffs also argue more generally that the 20 21 proposed protective order is too broad and will cover virtually everything Uber produces. See Dkt. 22 No. 44 at 11-12. However, the protective order will not deprive Plaintiffs of any of the information 23 produced, and nowhere do Plaintiffs explain why the public would be prejudiced by not being able 24 to access Uber’s discovery disclosures. Furthermore, Plaintiffs are free to challenge Defendants’ 25 designations, and Defendants could be subject to sanctions if they are found to be abusing the 26 protective order. 27 12 Case 2:21-cv-00202-BJR Document 54 Filed 08/18/21 Page 13 of 14 1 Accordingly, the Court hereby grants Defendants’ motion for a protective order, including 2 the modifications Defendants made to the Model Protective Order, which the Court finds 3 reasonable. 4 C. Defendants’ Motion for a Stay 5 6 7 Defendants seek an order staying this case until after Third-Party Defendants’ trial in their criminal case, which is set to begin on October 18, 2021. Dkt. No. 33 at 2, 8. Defendants argue 8 that discovery in this case necessarily involves seeking written responses or taking the depositions 9 of Third-Party Defendants, and that doing so before their criminal trial could violate Third-Party 10 11 Defendants’ Fifth Amendment rights against self-incrimination. Id. at 4-6. Furthermore, Defendants contend that, if Third-Party Defendants invoke their Fifth Amendment rights and do 12 not respond to discovery requests, Defendants will be “unable to meaningfully conduct discovery 13 14 15 on [Third-Party Defendants].” Id.at 7. In support, Defendants cite numerous cases in which courts stayed civil proceedings until a parallel criminal case concluded. See id. at 4-6. 16 The Court acknowledges that, to the extent discovery from Third-Party Defendants is 17 necessary in this case, Fifth Amendment concerns could arise and hamper discovery. However, as 18 Plaintiffs point out (see Dkt. No. 43 at 6), the bulk of discovery in this case does not concern Third- 19 Party Defendants, and there is no reason why that discovery should be stayed until October. The 20 Court has granted Defendants’ protective order, and Defendants are now obligated to begin 21 22 23 responding to Plaintiffs’ requests. If the parties encounter difficulty in seeking discovery from Third-Party Defendants, then the parties should simply arrange to take discovery from them after 24 25 26 27 13 Case 2:21-cv-00202-BJR Document 54 Filed 08/18/21 Page 14 of 14 1 their trial is complete. 5 Therefore, the Court finds that a stay is not warranted, and discovery should 2 proceed. 3 IV. CONCLUSION 4 For the foregoing reasons, Defendants’ motion for a protective order (Dkt. No. 35) is 5 6 HEREBY GRANTED. Defendants’ motion for a stay (Dkt. No. 33) is HEREBY DENIED. 7 Plaintiffs’ motion to strike or sever the third-party complaint (Dkt. No. 41) is HEREBY 8 GRANTED. The Court hereby strikes Defendants’ contribution and equitable indemnity claims 9 and severs Defendants’ contractual indemnity and declaratory judgment claims. 10 Dated this 18th day of August 2021. 11 12 13 Hon. Barbara J. Rothstein United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 5 The Court recognizes that the discovery period in this case closes on October 20, 2021, two days after Third-Party Defendants’ trial. If the parties need to extend that deadline or take depositions outside of the discovery period, they may make a request to that effect at the appropriate time. 14
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