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Flynn v. E. I. di Pont de Nemours9/17/1999
ated protective order is founded on an agreement between parties. We will not disturb such an agreement absent justification. We find no such justification here.
Flynn has advanced two principal rationales for modification. First, Flynn's counsel asserts that he wishes to retain the documents for his own benefit in order to maintain the integrity of his files and to study them for purposes of future litigation. Second, he asserts that he wishes to retain the documents for purposes of public access because they may be destroyed under du Pont's document destruction policy. He also claims that the interest in public access to these documents outweighs any confidentiality concerns du Pont may have because the "blanket" protective order he signed covers a significant number of documents which contain neither trade secrets nor privileged information.
Du Pont argues that retention of the documents for the sole benefit of Flynn's attorney cannot justify rescission of the parties' knowing, voluntary, court-ratified agreement. Because Flynn's attorney currently has no pending claims against du Pont, du Pont contends that any claim that the documents will be useful to him in future litigation is purely speculative.
Du Pont also asserts that modification is not warranted by the possibility the documents might be destroyed. It asserts that Flynn's evidence of du Pont's document destruction policy is outdated and inaccurate. At oral argument before us, counsel for du Pont represented that the documents will be available to future litigants as long as there is an ongoing need for them in litigation and assured us that "there is no threat to the existence of these documents." We accept those representations as the guarantee of du Pont and its counsel that the documents will remain available and will not simply be destroyed upon the Conclusion of Flynn's appeal in this case.
We recognize the significant policy concerns underlying Flynn's attempt to retain the documents to maintain their availability to future litigants in the event of their destruction by du Pont. Nonetheless, having agreed to and benefitted from the protective order, Flynn cannot obtain modification of the order for solely self-interested reasons or speculative public policy concerns.
Our decision here is informed by the opinions of federal courts considering this issue. Some federal courts have permitted modification of protective orders when the interests of third parties or the public outweigh the protected party's interest in maintaining secrecy. But Flynn has cited no authority supporting modification under the circumstances found here. The key cases allowing modification involve relief sought by or for the benefit of third parties. They support modification for general public policy reasons, not for the benefit of an original party or his attorney. Flynn's request exceeds the boundaries staked out by those courts that freely allow modification. The superior court correctly concluded that Flynn had offered no reason justifying relief from the protective order.
D. Duress
Flynn also argues that the agreement should be voided because he entered into it under duress. To prevail on a claim of duress, Flynn must establish that: (1) he involuntarily accepted du Pont's terms; (2) the circumstances permitted no alternative; and (3) those circumstances were the result of coercive acts by du Pont. Flynn has failed to demonstrate that he lacked viable alternatives to accepting du Pont's terms. He could have tried to negotiate different terms or challenged du Pont's terms in the superior court. If necessary, he could have sought to continue the scheduled discovery to give the court ti
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