In re: James M. Foor and Krystina Foor v. State Farm Fire and Casualty Company

majority opinion

Rel: August 14, 2026

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA

SPECIAL TERM, 2026

SC-2025-0918

Ex parte State Farm Fire and Casualty Company

PETITION FOR WRIT OF MANDAMUS

(In re: James M. Foor and Krystina Foor

State Farm Fire and Casualty Company)

(Bullock Circuit Court: CV-25-900001)

MENDHEIM, Justice.

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State Farm Fire and Casualty Company ("State Farm") petitions

this Court for a writ of mandamus directing the Bullock Circuit Court to

remove any "sharing" provisions from a protective order it entered

concerning materials that the plaintiffs, James M. Foor and Krystina

Foor, sought in discovery from State Farm. We grant the petition in part,

deny it in part, and issue the writ.

I. Facts

In their complaint, the Foors allege that they have a homeowners'

insurance policy issued by State Farm that includes coverage for storm

damage to their home located in Union Springs. They assert that, in the

first week of January 2024, a storm that came through the area where

their home is located caused significant wind and hail damage to the

home's roof. The Foors allege that they made a timely claim on their

homeowners' insurance policy, that they obtained a quote from a

qualified roofing contractor who estimated that repairs to the damaged

roof would cost $9,112.02, and that they presented that quote to State

Farm. The Foors assert that State Farm "adjusted the claim in a cursory

fashion and offered to settle the claim" for a cost of $4,059.10.

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On January 9, 2025, the Foors commenced an action in the Bullock

Circuit Court against State Farm, asserting claims of breach of contract

and bad faith and alleging that "State Farm has a pattern and practice

of lowballing roofing claims and, upon information and belief, has

implemented a program to reduce roof payouts without regard to the

merits of the claim." The Foors sought damages for roof replacement and

mental anguish and punitive damages.

The Foors' counsel served written discovery with the complaint, but

State Farm objected to the requests on the ground that the requests were

overbroad and burdensome. The Foors filed a second request for

production of documents that State Farm objected to for similar reasons.

On September 5, 2025, the Foors filed a motion to compel in which they

requested that the circuit court enter an order requiring State Farm "to

fully and properly respond to an outstanding deposition notice,

interrogatories, and requests for production."

On September 24, 2025, the Foors filed a "Motion for Entry of a

Sharing Protective Order" in which they stated that "[t]he parties have

been attempting to negotiate the terms of a protective order. The primary

breakdown between the parties can be boiled down to one issue: [State

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Farm] does not want a 'sharing' provision in the Protective Order." In

that motion, the Foors quoted several decisions from other jurisdictions

in which courts had approved the sharing in parallel lawsuits of

information produced in discovery because it promotes litigation speed,

reduces litigation costs, forces parties to be consistent in their responses,

and conserves judicial resources. The Foors' motion also cited multiple

Alabama cases in which trial courts had entered protective orders with

sharing provisions. The Foors attached a proposed protective order to the

motion, which, in part, stated:

"All such materials furnished shall be available to

counsel for the requesting party to use in this case, cases in

which other attorneys represent plaintiffs with similar claims

of bad faith against State Farm, and in the following cases:

"Byers v. State Farm Fire and Casualty Company

Circuit Court of Jefferson County, Alabama Case No. 01-cv2025-900479.00

"Cook v. State Farm Fire and Casualty Company

"Foor v. State Farm Fire and Casualty Company Circuit

Court of Bullock County, Alabama Case No. 09-cv-2025-900001.00

"Hager v. State Farm Fire and Casualty Company

"Parker v. State Farm Fire and Casualty Company U.S.

D.C., Northern District of Alabama Case No. 2:25-cv-00281-NAD

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"Phornroekngam v. State Farm Fire and Casualty

Company U.S. D.C., Northern District of Alabama Case No.

5:25-cv-01152-HNJ

"Reeves v. State Farm Fire and Casualty Company U.S.

D.C., Northern District of Alabama Case No. 2:25-cv-00342-SGC

"Robinson v. State Farm Fire and Casualty Company

U.S. D.C., Northern District of Alabama Case No. 4:25-cv01260-RDP

"Walker v. State Farm Fire and Casualty Company

Circuit Court of Autauga County, Alabama Case No. 04-cv2025-900165.00."

On October 10, 2025, State Farm filed its own motion for a

protective order in which it contended that the Foors' motion for a

protective order containing sharing provisions "seek[s] permission to

disseminate State Farm's confidential documents to counsel nationwide

and unspecified governmental entities, amplifying the risk of irreparable

harm to State Farm's proprietary interests through widespread sharing

of materials that may ultimately prove irrelevant or disproportionate to

the instant case."

On October 16, 2025, State Farm filed its response to the Foors'

motion to compel in which it contended that it had provided

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"materials directly relevant to the [Foors'] single homeowners'

insurance claim arising from alleged January 2024 storm

damage to their roof, including the complete Claim File, the

applicable Policy, and underwriting materials. State Farm

will also produce applicable Operations Guides and will agree

to produce additional documents relating to the training of

those involved in [the Foors'] claim upon entry of a protective

order."

(Emphasis added.)

On October 17, 2025, State Farm filed its response in opposition to

the Foors' motion for a protective order that contained more arguments

against the sharing provisions in the Foors' proposed protective order. In

that response, State Farm asserted that

"[n]o Alabama court has ever permitted a sharing provision in

any bad faith insurance litigation, much less one as sweeping

as this. Thus, [the Foors'] request invites the Court to issue a

first-of-its-kind ruling without any on-point precedential

support -- thereby risking exposure of State Farm's trade

secrets and undermining its right to safeguard such

proprietary information. Indeed, [the Foors] rely on cases

touting the benefits of discovery sharing among plaintiffs in

product defect claims, but that rationale does not extend to

single-loss insurance disputes like this one, nor do the

Alabama Rules of Civil Procedure support such a demand."

(Emphasis omitted.) State Farm described the Foors' proposed protective

order as "an atypical 'sharing protective order' -- an oxymoron that pits

unrestricted sharing against the very protection that protective orders

are meant to provide: authorizing dissemination well beyond the confines

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of this case." (Id. at p. 2.) State Farm predicted that granting the Foors'

proposed protective order would "produce a chilling effect that will

discourage parties from voluntarily offering to produce their confidential

and proprietary information in discovery, as the risk of broad

redisclosure will be too high." State Farm attached to its response its own

proposed protective order that contained no provisions for sharing in any

other case information designated as "confidential, trade secret, or

subject to [the] protective order." State Farm's proposed protective order

did contain a provision stating, in pertinent part:

"8. Information designated as CONFIDENTIAL,

TRADE SECRET, or SUBJECT TO PROTECTIVE ORDER

by State Farm shall be disclosed only to the following persons:

"....

"(h) the Alabama Department of Insurance, law

enforcement officers, and/or other government agencies, as

permitted or required by applicable state and federal law."

(Capitalization in original.) State Farm asserted in its response that the

Foors' counsel

"has previously agreed to entry of the same or substantially

similar protective order in other cases against State Farm.

See, e.g., Lang et al v. State Farm Fire & Casualty Company,

Case No. 4:21-CV-01301-CLM (N.D. Ala.); Vance v. State

Farm Fire & Casualty Company, Case No. 2:22-CV-00484-7

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GMB (N.D. Ala.); Simmons et al. v. State Farm Fire &

Casualty Company, Case No. 2:23-CV-00196-NAD (N.D.

Ala.). [The Foors] have not articulated a reason why State

Farm's proposed protective order language is no longer

acceptable."

State Farm cited in its response multiple federal cases that rejected

sharing provisions in protective orders. In response to the Foors' list of

Alabama cases in which trial courts have included sharing provisions in

protective orders, State Farm argued that "all these cases appear to

involve product defect allegations." State Farm contended that productdefect cases are different than insurance disputes because "first party

insurance cases can stem from a wide range of legal, factual, and

procedural factors, including (but not limited to) policy coverage and

exclusions, cause of damage, type of damage, policyholder conduct, claim

defects, etc."

On October 20, 2025, Circuit Court Judge L. Bernard Smithart held

a hearing concerning the competing protective-order proposals. On

October 30, 2025, the circuit court entered a protective order that, in

pertinent part, provided:

"A. State Farm Fire and Casualty Company ('State

Farm') possesses certain information and documents that

contain confidential, proprietary, or trade secret information

that may be subject to discovery in this action, but that should

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not be made publicly available.

"B. The parties requested that the Court enter a

Protective Order to properly balance the discovery rights of

the [Foors] with State Farm's rights to protect its private,

confidential, proprietary, or trade secret information.

"C. Information obtained from State Farm in discovery

which does not constitute trade secret or other confidential

research development, or commercial information is not the

subject of this Stipulated Order.

"....

"All such materials furnished shall be available to

counsel for the requesting party to use in this case and in any

cases in which counsel for the Foors also represent parties

that have made claims of bad faith against State Farm

relative to a roof claim.

"a. Such material shall not be produced to

any commercial competitor insurer of the party

producing the data;

"b. Any such materials may be disclosed to

any governmental agency, which has oversight

authority to study issues pertinent to the

insurance product at issue. However, at least 10

days before such data is furnished to the relevant

governmental agency, the party making such

disclosure shall give notice to the party that

produced the materials in discovery to allow that

party the opportunity to ask the governmental

agency to maintain the materials as confidential;

"c. Such materials may be provided to the

court in connection with consideration of any

motion but shall be filed with a request that it be

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placed under seal;

"d. The data produced hereto may not

otherwise be sold, offered, advertised or publicized

to any media representative.

"Should a requesting party dispute that materials

produced constitute trade secret or other confidential

research, development, or commercial information, said party

shall notify the producing party which may, within 20 days,

move for a determination that the materials are entitled to

confidentiality. Under such circumstances, the producing

party bears the burden of proving the propriety of designating

an item as confidential. If no motion is brought within 20

days, the materials shall not be considered subject to this

Order. If a motion is brought, the materials shall be handled

in accordance with this order until the motion is ruled upon,

and thereafter shall be subject to this order if the court

determines that the material is confidential research,

development, or commercial information.

"Confidential materials may be disclosed to attorneys or

other office personnel, experts, contractors, and consultants,

working with counsel for the requesting party in the

prosecution of the case. If anyone outside the confines of the

office of counsel is to receive information covered by this

Stipulation, they must agree in writing to the terms of this

Stipulated Order.

"....

"The recipient of any information designated

CONFIDENTIAL, TRADE SECRET, or SUBJECT TO

PROTECTIVE ORDER pursuant to this Agreement shall

maintain information in a secure and safe area and shall

exercise due and proper care with respect to the storage,

custody and use of all such information.

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"....

"The obligations of this Protective Order shall survive

the termination of this action and continue to bind the parties

and their counsel. The Court will have continuing jurisdiction

to enforce this Protective Order irrespective of the manner in

which this action is terminated.

"Within thirty-five (35) days of the final determination

of this action, each person or party who has received

information designated as CONFIDENTIAL, TRADE

SECRET, or SUBJECT TO PROTECTIVE ORDER shall be

obligated to return the same to State Farm, including any

copies, or to destroy such information and certify that it has

been destroyed, except that the recipient need not destroy or

return transcripts of depositions and materials filed with the

Court, and party may retain one archival copy of all pleadings

in the action, regardless of whether such pleadings (including

appendices), contain or refer to information designated as

CONFIDENTIAL, TRADE SECRET, or SUBJECT TO

PROTECTIVE ORDER; subject to the legal requirements for

maintenance and destruction of client files by the parties'

counsel. Within seven (7) days of the final determination of

this action, counsel of record who has provided information

designated as CONFIDENTIAL, TRADE SECRET, or

SUBJECT TO PROTECTIVE ORDER to other individuals

must inform those individuals that the matter has reached

final determination and remind them of the return or

destruction obligation.

"This Protective Order may be modified by the Court at

any time for good cause shown following notice to all parties

and an opportunity for them to be heard."

(Capitalization in original; emphasis added.)

Attached to the protective order was a document titled "Exhibit A

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-- Agreement To Be Bound By Protective Order" ("the exhibit

agreement"). That exhibit agreement provided: "The undersigned

_______, hereby acknowledges receipt of that certain Protective Order

entered in Case No. 09-CV-2025-900001, in the Circuit Court of Bullock

County, Alabama, Foor v. State Farm. I have reviewed that Protective

Order and hereby Agree to be bound by the terms thereof." Under that

language were blank lines for the signature of the person agreeing to be

bound by the protective order and the date the exhibit agreement would

be executed.

On December 2, 2025, State Farm filed with this Court a petition

for the writ of mandamus "directing the Bullock ... Circuit Court to vacate

its October 30, 2025, protective order and to enter, in its place, a nonsharing protective order that protects State Farm's trade secrets and

confidential information to the maximum extent practicable." State

Farm's petition, p. 1. Along with its petition, State Farm filed an

emergency motion to "stay production of State Farm's confidential and/or

trade secret information, for which no adequate protective order is in

place, pending the Court's consideration of State Farm's mandamus

petition." State Farm's emergency motion, p. 2. On December 4, 2025,

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this Court granted State Farm's emergency motion for a stay pending

this Court's review of State Farm's petition.1 On January 29, 2026, this

Court ordered answers and briefs in response to State Farm's petition.

On April 6, 2026, this Court set this case for oral argument, which was

held on June 3, 2026.

II. Standard of Review

"Mandamus is an extraordinary remedy and will be

granted only where there is '(1) a clear legal right in the

petitioner to the order sought; (2) an imperative duty upon the

respondent to perform, accompanied by a refusal to do so; (3)

the lack of another adequate remedy; and (4) properly invoked

jurisdiction of the court.' Ex parte Alfab, Inc., 586 So. 2d 889,

891 (Ala. 1991). This Court will not issue the writ of

mandamus where the petitioner has ' "full and adequate

relie f" ' by appeal. State v. Cobb, 288 Ala. 675, 678, 264 So. 2d

523, 526 (1972) (quoting State v. Williams, 69 Ala. 311, 316

(1881)).

"Discovery matters are within the trial court's sound

discretion, and this Court will not reverse a trial court's ruling

on a discovery issue unless the trial court has clearly exceeded

its discretion. Home Ins. Co. v. Rice, 585 So. 2d 859, 862 (Ala.

1On December 30, 2025, State Farm filed a second petition for the

writ of mandamus in this case concerning a November 20, 2025, order of

the circuit court that had granted the Foors' motion to compel responses

to propounded discovery. State Farm argued that the discovery requests

were "overly broad, irrelevant, and unduly burdensome." On January 29,

2026, this Court denied that petition on the ground that it was

"prematurely filed." Ex parte State Farm Fire & Cas. Co., No. SC-2025-1005.

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1991). Accordingly, mandamus will issue to reverse a trial

court's ruling on a discovery issue only (1) where there is a

showing that the trial court clearly exceeded its discretion,

and (2) where the aggrieved party does not have an adequate

remedy by ordinary appeal. The petitioner has an affirmative

burden to prove the existence of each of these conditions."

Ex parte Ocwen Fed. Bank, FSB, 872 So. 2d 810, 813 (Ala. 2003). See also

Ex parte Dorsey Trailers, Inc., 397 So. 2d 98, 102 (Ala. 1981) ("The

utilization of a writ of mandamus to compel or prohibit discovery is

restricted because of the discretionary nature of a discovery order. The

right sought to be enforced by mandamus must be clear and certain with

no reasonable basis for controversy about the right to relief. The writ will

not issue where the right in question is doubtful.").

III. Analysis

A. Specific Determinations About Confidentiality Are Not Before Us

Before we address the central issue presented by State Farm's

mandamus petition, we take a moment to clarify that we are not

concerned here with whether the information State Farm will provide

under the auspices of the protective order is, in fact, "confidential,

proprietary, or trade secret information." The parties debate whether the

information that may be provided is confidential. State Farm claims that

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its Operations Guides, Standard Claim Processes, and Jurisdictional

References are "indisputably confidential and trade secret information."

State Farm's petition, p. 11. The Foors observe that, "[w]hile State

Farm's Affidavit of Michael Aaron Carter indicates that only some

portions of the Operation Guide are confidential, State Farm has refused

to produce any portion of it," and the Foors "question[] why State Farm,

a policyholder-owned mutual company, is so intent on keeping its written

procedures for handling claims secret anyway." Foors' answer, pp. 7, 18-19 (citations to appendices omitted).

However, those arguments are not pertinent to the question

presented by this petition because, under the terms of the protective

order, State Farm is free to designate any materials requested by the

Foors as "trade secret" or "confidential," but if the Foors question such a

designation, State Farm must file a motion with the circuit court seeking

a determination about confidential status, and State Farm will bear the

burden of demonstrating that the materials are, in fact, confidential.2

2Because the protective order essentially postpones any

disagreements the parties may have with respect to whether particular

information provided by State Farm in discovery contains confidential,

proprietary, or trade-secret information, the protective order is what is

sometimes described as an "umbrella" protective order. See, e.g., 8A

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That procedure aligns with the burden-shifting process prescribed by this

Court when a party seeks to invoke a trade-secret privilege, but it does

not implicate a portion of the protective order challenged by State Farm's

petition for the writ of mandamus.3

Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal

Practice and Procedure § 2035 (3d ed. 2010) ("Protective orders have

often been sought by agreement, particularly regarding confidential

information and in litigation likely to involve a large volume of

documents. Frequently these agreements propose 'umbrella' protective

orders that authorize any person producing information to designate that

which is confidential as protected under the order.").

"With regard to proprietary or trade-secret information,

this Court has stated:

" 'A party asserting the trade-secret privilege has

the initial burden of showing that the information

sought to be shielded from disclosure constitutes a

trade secret the disclosure of which would result in

injury. Ex parte Miltope, 823 So. 2d [640,] 644

[(Ala. 2001)]. If such a showing is made, the

burden then shifts to the party seeking the

disclosure of the trade secret to show that the

information "is both necessary and relevant to the

litigation." II Charles W. Gamble and Robert J.

Goodwin, McElroy's Alabama Evidence § 361.02(5)

(6th ed. 2009). The trial court then "conducts a

balancing process under which it decides whether

the need for the information outweighs any harm

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B. Rule 26 and Sharing Provisions

The October 30, 2025, protective order contains two provisions with

which State Farm takes issue. Those provisions state:

"All such materials furnished shall be available to

counsel for the requesting party to use in this case and in any

cases in which counsel for the Foors also represent parties

that have made claims of bad faith against State Farm

relative to a roof claim.

"....

"b. Any such materials may be disclosed to

any governmental agency, which has oversight

authority to study issues pertinent to the

insurance product at issue. However, at least 10

days before such data is furnished to the relevant

governmental agency, the party making such

disclosure shall give notice to the party that

produced the materials in discovery to allow that

party the opportunity to ask the governmental

agency to maintain the materials as confidential."

The question presented is whether the circuit court clearly exceeded

its discretion by including the foregoing provisions in the protective

that would result from its disclosure." Id., at §

361.02(3).'

"Ex parte Michelin N. Am., Inc., 161 So. 3d 164, 170-71 (Ala.

2014)."

Ex parte Harbor Freight Tools USA, Inc., 331 So. 3d 88, 96-97 (Ala. 2021).

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order. As we will detail, the parties' arguments concerning that issue

contain nuances, but we believe it is best to start our analysis with "Rule

26, Ala. R. Civ. P., [which] governs the discovery of information in civil

actions." Ex parte Henry, 770 So. 2d 76, 79 (Ala. 2000). In pertinent part,

Rule 26, Ala. R. Civ. P., provides:

"(b) Discovery Scope and Limits. Unless otherwise

limited by order of the court in accordance with these rules,

the scope of discovery is as follows:

"(1) In General. Parties may obtain discovery

regarding any matter, not privileged, which is: (i)

relevant to the subject matter involved in the

pending action, whether it relates to the claim or

defense of the party seeking discovery or to the

claim or defense of any other party; and (ii)

proportional to the needs of the case, considering

the importance of the issues at stake in the action,

the amount in controversy, the parties' relative

access to relevant information, the parties'

resources, the importance of the discovery in

resolving the issues, and whether the burden or

expense of the proposed discovery outweighs its

likely benefit. It is not ground for objection that the

information sought will be inadmissible at the

trial if the information sought appears reasonably

calculated to lead to the discovery of admissible

evidence.

"....

person from whom discovery is sought, and for good cause

shown, the court in which the action is pending or,

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alternatively, on matters relating to a deposition or

production or inspection, the court in the circuit where the

deposition or production or inspection is to be taken may

make any order that justice requires to protect a party or

person from annoyance, embarrassment, oppression, or

undue burden or expense, including one or more of the

following: ... (7) that a trade secret or other confidential

research, development, or commercial information not be

disclosed or be disclosed only in a designated way ...."

We begin with Rule 26 because the overall tenor of the arguments

presented by State Farm and the entities who have filed amicus curiae

briefs in support of State Farm seems to be that the dissemination of any

information garnered in discovery to those not involved in this case is

contrary to that rule. In its petition, State Farm argues that the

provisions at issue do "not align with Rule 26's case-specific limits" and

that "[c]onverting discovery in this case into a pipeline for State Farm's

proprietary information distorts Rule 26's case-specific requirements."4

State Farm's petition, pp. 19-20, 21.

4In its petition and reply brief and in oral argument, State Farm

contended that this Court's decision in Ex parte Mobile Infirmary Ass'n,

279 So. 3d 1129, 1134 (Ala. 2018), was analogously pertinent in this

regard. Mobile Infirmary was a medical-malpractice case in which a trial

court's protective order permitted the plaintiff's counsel to " 'shar[e] the Confidential Information obtained in this Lawsuit with other partners,

associates and staff of the same law firm who may be involved in other

litigation against Mobile Infirmary.' " Id. at 1131. This Court concluded

that the sharing provision was inappropriate because it "effectively

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Notably, State Farm does not elaborate on those statements

anywhere else in its petition or in its reply brief, apparently electing to

leave the details of its Rule 26 argument to the entities that filed amicus

curiae briefs in support of State Farm. That is a questionable strategy

given that

" ' "[i]t is not the function of this Court to do a party's legal

research or to make and address legal arguments for a party

based on undelineated general propositions not supported by

sufficient authority or argument." ' Butler v. Town of Argo,

871 So. 2d 1, 20 (Ala. 2003)(quoting Dykes v. Lane Trucking,

Inc., 652 So. 2d 248, 251 (Ala. 1994))."

Ex parte Borden, 60 So. 3d 940, 943 (Ala. 2007). Moreover,

"[t]his Court has stated that it 'will not decide a question

presented by amicus curiae which was not presented by the

parties to the cause, and will leave the question for decision

when properly raised and presented.' State ex rel. Baxley v.

Johnson, 293 Ala. 69, 74, 300 So. 2d 106, 110 (1974)."

creates an 'end run' around the limitations on discovery set forth in § 6-5-551[, Ala. Code 1975]." Id. at 1134. Section 6-5-551, Ala. Code 1975,

provides that "[a]ny party shall be prohibited from conducting discovery

with regard to any other act or omission or from introducing at trial

evidence of any other act or omission." Thus, the ruling against the

sharing provision at issue in Mobile Infirmary was based on a specific

discovery prohibition in the Alabama Medical Liability Act of 1987, § 6-5-540 et seq., Ala. Code 1975, not on any restriction contained in Rule 26

of the Alabama Rules of Civil Procedure. Nonetheless, State Farm

insisted at oral argument that the sharing provisions in the protective

order constitute an "end run" around Rule 26. The authorities provided

in the body of this opinion demonstrate otherwise.

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Hanes v. Merrill, 384 So. 3d 616, 621 n.3 (Ala. 2023). Thus, the argument

that sharing provisions in a protective order are per se prohibited by Rule

26 is arguably foreclosed by Rule 28(a)(10), Ala. R. App. P., because State

Farm never expressly presented it to us or provided any supporting

authority for it.

Nonetheless, the amicus curiae brief from the Alabama Defense

Lawyers Association ("ADLA") asserts that "[n]othing in Alabama law

transforms discovery into a mechanism for arming other litigants with a

defendant's confidential information," and for support of that assertion it

states that "the scope of discovery is limited to non-privileged matter that

is 'relevant to the subject matter involved in the pending action.' Ala. R.

Civ. P. 26(b)(1) (emphasis added)." ADLA's brief, p. 13. The joint amicus

curiae brief from the Chamber of Commerce of the United States and the

American Tort Reform Association ("COC-ATRA") contends that "[t]he

central problem with sharing is that it permits future collateral plaintiffs

to 'obtain discovery' that is not 'proportional to the needs of the case,' in

violation of Alabama Rule of Civil Procedure 26(b)(1) ...." COC-ATRA's

brief, p. 20.

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However, in promoting the idea that Rule 26 prohibits the

dissemination of information obtained in discovery beyond the specific

case in which the information is obtained, State Farm and its amici fail

to correctly interpret the rule's language, bypass overwhelming legal

authority concerning the nature of discovery, and contradict other

statements in their own briefs. First, when Rule 26(b)(1) states that

"[p]arties may obtain discovery regarding any matter, not privileged,

which is ... relevant to the subject matter involved in the pending action

... and ... proportional to the needs of the case," it is clearly referring to

what information may be "obtain[ed in] discovery," not whatever a party

might do with that information once it is obtained. There is a distinct

difference between what information a party is entitled to receive in

discovery and what a party is entitled to do with that information once it

is received. The language in Rule 26(b)(1) concerns the former, not the

latter.

Indeed, one of the cases upon which State Farm and all its amici

heavily rely, Byrd v. U.S. Xpress, Inc., 26 N.E.3d 858, 863 (Ohio Ct. App.

2014), openly states: "We start with the premise that absent a protective

order, parties to a lawsuit may generally disseminate discovered

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materials as they wish. See, e.g., Jepson Inc. v. Makita Elec. Works, Ltd.,

30 F.3d 854, 858 (7th Cir. 1994)." The Byrd court is far from alone in

expressing that concept. "A party may generally do what it wants with

material obtained through the discovery process, as long as it wants to

do something legal. The federal rules do not themselves limit the use of

discovered documents or information." Harris v. Amoco Prod. Co., 768

F.2d 669, 683-84 (5th Cir.1985) (internal citations omitted).5 "[T]he

Federal Rules do not prohibit collaboration among litigants." Waelde v.

Merck, Sharp & Dohme, 94 F.R.D. 27, 30 (E.D. Mich. 1981). "The federal

rules do not foreclose collaboration among litigants, and the court does

not consider the possibility that plaintiff will share the results of

discovery with any other litigant any part of defendant's showing of good

cause to justify a protective order." Parsons v. General Motors Corp., 85

F.R.D. 724, 726 n.1 (N.D. Ga. 1980). "Use of the discovery fruits disclosed

in one lawsuit in connection with other litigation, and even in

collaboration among plaintiffs' attorneys, comes squarely within the

5"[S]ince the Alabama Rules of Civil Procedure are modeled on the

Federal Rules of Civil Procedure, federal decisions are highly persuasive

when we are called upon to construe the Alabama Rules." City of

Birmingham v. City of Fairfield, 396 So. 2d 692, 696 (Ala. 1981).

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purposes of the Federal Rules of Civil Procedure." United States v.

Hooker Chems. & Plastics Corp., 90 F.R.D. 421, 426 (W.D.N.Y. 1981).

"There is nothing inherently culpable about sharing information

obtained through discovery." Patterson v. Ford Motor Co., 85 F.R.D. 152,

154 (W.D. Tex. 1980).

The courts' understanding about discovery sharing draws directly

from the fact that the power granted to trial courts in Rule 26(c) to issue

protective orders constitutes a limitation on the broad discovery

permitted under Rule 26(b). "Because of the liberality of pretrial

discovery permitted by Rule 26(b)(1), it is necessary for the trial court to

have the authority to issue protective orders conferred by Rule 26(c)."

Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34 (1984).6

6Courts sometimes have become confused by the United States

Supreme Court's statement in Seattle Times Co. v. Rhinehart, 467 U.S.

20, 32 (1984), that "[a] litigant has no First Amendment right of access

to information made available only for purposes of trying his suit," taking it to mean that a party cannot share information obtained in discovery

outside the lawsuit in which it was obtained. See, e.g., Gillard v. Boulder Valley Sch. Dist. Re.-2, 196 F.R.D. 382, 387 (D. Colo. 2000) (stating that

"a party has no right to make unrestricted disclosure of the information

obtained through discovery"). But Rhinehart was concerned with

whether a protective order violated the First Amendment rights of a

newspaper to disseminate information obtained from an adverse party in

discovery. In other words, Rhinehart held that protective orders do not

violate the First Amendment because the public does not have a

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"It is well-established that the fruits of pretrial discovery are,

in the absence of a court order to the contrary, presumptively

public. See Citizens First Nat'l Bank v. Cincinnati Ins. Co.,

178 F.3d 943, at 944-45 (7th Cir. 1999); Public Citizen[ v.

Liggett Grp., Inc.], 858 F.2d [775,] 789 [(1st Cir. 1988)]; In re

Agent Orange Product Liability Litig., 821 F.2d 139, 145-46

(2d Cir. 1987). Rule 26(c) authorizes a district court to

override this presumption where 'good cause' is shown."

San Jose Mercury News, Inc. v. United States Dist. Ct.--N. Dist. (San

Jose), 187 F.3d 1096, 1103 (9th Cir. 1999). See also Foltz v. State Farm

Mut. Auto. Ins. Co., 331 F.3d 1122, 1128 n.1 (9th Cir. 2003) ("Absent

court order or a private agreement, the Foltz parties would be free to

disclose their discovered materials to collateral litigants."); Humboldt

constitutional right to access discovery materials. It did not hold that the First Amendment prohibits a party to litigation from disseminating

discovery materials in the absence of a protective order. See, e.g.,

Newcomb v. Esurance Ins. Servs., Inc., No. 15-cv-02062-LTB-KMT, Oct.

25, 2017, n.1 (D. Colo. 2017) (not reported in Federal Supplement) ("This

is not to say that the public has a right to access discovery material. It

clearly does not and that is why discovery material is exchanged between

the parties, not filed with the court."); A Project of The Sedona Conference Working Group on Protective Orders, Confidentiality & Public Access

(WG2), The Sedona Guidelines: Best Practices Addressing Protective

Orders, Confidentiality & Public Access in Civil Cases March 2007 PostPublic Comment Version, 8 Sedona Conf. J. 141, 143 (2007) ("In the

discovery context, there is no presumption of public access to unfiled

discovery. Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984). There is

also no prohibition against a party disseminating information obtained

through discovery.").

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Baykeeper v. Union Pac. R.R., 244 F.R.D. 560, 563 (N.D. Cal. 2007)

(observing that Rule 26(c) "creates a presumption in favor of freedom of

dissemination"); Baker v. Liggett Grp., Inc., 132 F.R.D. 123, 125 (D.

Mass. 1990) (" 'It is implicit in Rule 26(c)'s "good cause" requirement that

ordinarily (in the absence of good cause) a party receiving discovery

materials might make them public.' " (citation omitted)). See generally

Clippard v. Yamaha Motor Corp., No. 5:14-CV-83-R, Mar. 17, 2015 (W.D.

Ky. 2015) (not reported in Federal Supplement) ("[I]f the court deems the

information confidential, the appropriate procedural safeguards (for

example, sharing versus non-sharing) that should attend their disclosure

by means of a protective order are also a matter within the trial court's

discretion." (citing R.C. Olmstead, Inc., v. CU Interface, LLC, 606 F.3d

262, 269 (6th Cir. 2010))).

Familiarity with some of or all the foregoing authorities probably

accounts for the reason that the amici supporting State Farm reluctantly

admit that discovery sharing is permissible in some circumstances.7 See

7To be sure, the amici supporting State Farm, such as COC-ATRA,

contend that the "the real-world trend" in the federal courts is against

"upfront" discovery-sharing provisions -- provisions that permit sharing

at the outset of discovery production between the parties. COC-ATRA's

brief, p. 13. On the other hand, United Policyholders, the amicus curiae

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ADLA brief, p. 15 ("To be sure, these courts have not held that sharing

can never occur." (emphasis in original)); COC-ATRA's brief, pp. 10, 20

("Amici do not doubt that discovery sharing may be appropriate in certain

narrow circumstances." "None of this is to say that amici oppose discovery

sharing in all circumstances."). In short, even the amici supporting State

Farm tacitly admit that Rule 26 does not prohibit the dissemination of

discovery materials outside the specific case in which the information is

obtained. It is just that they oppose it in this instance that (presumably)

involves confidential and trade-secret information.

C. The Limiting Language of the Protective Order

The thrust of State Farm's more specific argument is that the two

provisions of the protective order to which it objects "expose[] State Farm

to immediate, irreparable competitive harm" because, it says, "the

supporting the Foors, argues that "[a] vast array of decisions, many

recent, confirm that such provisions were warranted for the same reasons

argued by [the Foors]." United Policyholders brief, p. 13. The upshot of

all the case citations from both sides is that "jurisdictions appear to be

split on whether sharing provisions are appropriate or useful." Butler v.

Daimler Trucks N. Am. LLC, No. 19-2377-JAR, Jan. 10, 2020 (D. Kan.

2020) (not reported in Federal Supplement). See also Byrd v. U.S. Xpress,

Inc., 26 N.E.3d 858, 863 (Ohio Ct. App. 2014) ("[T]he legal databases are

replete with cases where sharing has been allowed, and also with cases

where it has not been allowed.").

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information at issue -- including, for example, State Farm's proprietary

Operations Guides ('OGs'), Standard Claim Processes ('SCPs'), and

Jurisdictional References ('JRs') -- embody confidential and trade secret

claims-handling procedures, methods, and systems." State Farm's

petition, pp. 9-10 (footnote omitted). State Farm asserts that "the

Protective Order anticipates and allows [the Foors'] counsel to share

these confidential and trade secret materials with third parties (other

plaintiffs' counsel and governmental entities) outside this litigation,

thereby effectively nullifying any protections for State Farm." Id., p. 11.

That is so, State Farm surmises, because

"this Order's framework permits dissemination across

unrelated proceedings, triggered by [the Foors'] counsel

adding their names to any case in any jurisdiction -- enabled

by licenses in Texas, Washington State, Georgia, and

Colorado's District Court, or expanded via pro hac vice

admissions elsewhere. It also permits disclosure to 'any

governmental agency' that has 'oversight authority to study

issues pertinent to the insurance product at issue,'

nationwide."

Id., pp. 15-16. State Farm goes so far as to claim that the protective order

"grant[s the Foors' counsel] carte blanche to disseminate [State Farm's]

confidential and/or trade secret information at their discretion and

without any safeguards." Id., p. 16.

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For their part, the Foors contend that

"State Farm and their amici attack an order and a problem

that does not exist. State Farm and their amici decry an

attempt to create a 'sharing regime' and a national

'clearinghouse for unrelated litigation' that envisions the

[Foors'] counsel traipsing across the country, selling State

Farm's information to the highest bidder. The actual

Protective Order and the actual facts before this Court do not

present that picture.

"The Protective Order provides that information may

only be used for the present case or other cases involving bad

faith roof cases against State Farm in which the undersigned

also represent the policyholders. It provides that the

information must be kept confidential, cannot be supplied to

competitors, cannot be sold and must be returned at the end

of the litigation. In addition, any non-law firm personnel must

agree in writing to be bound by the order."

Foors' answer, p. 13.

What is striking about the parties' diametrically opposing views of

what sharing the protective order allows is that neither side directly

focused on the specific language of the provisions in their briefs, and the

members of the Court noticed that lack of specificity again during oral

argument.8 However, it is this Court's responsibility to focus on the

protective order's language because it is the parameters that the

8During oral argument, counsel for both sides at times seemed

unfamiliar with the specific language of the protective order.

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protective order actually provided that determine whether the circuit

court exceeded its discretion by including the sharing provisions in the

protective order.

The central sharing provision in the protective order states: "All

such materials furnished shall be available to counsel for the requesting

party to use in this case and in any cases in which counsel for the Foors

also represent parties that have made claims of bad faith against State

Farm relative to a roof claim." (Emphasis added.) As the rendition of facts

relates, the proposed protective order that the Foors attached to their

"Motion for Entry of a Sharing Protective Order" listed eight other cases

in which the Foors' counsel had commenced actions on behalf of parties

who asserted bad-faith claims against State Farm concerning roof

damage. The Foors' answer lists seven other cases that they assert are

"bad faith cases that the counsel in this case are handling against State

Farm in Alabama involving allegations of a national program to deny or

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reduce roof damage claims involving wind or hail."9 Foors' answer, pp. 5-6.10

Although the Foors' proposed protective order, unlike the circuit

court's October 30, 2025, protective order, listed eight specific additional

cases, the proposed order's sharing provision contained considerably

broader language than the circuit court's protective order -- language

that was not limited to those listed cases: "All such materials furnished

shall be available to counsel for the requesting party to use in this case,

cases in which other attorneys represent plaintiffs with similar claims of

bad faith against State Farm, and in the following cases: ...." (Emphasis

added.)

Comparing the language of those two provisions, it is clear that the

circuit court intended to limit discovery sharing to the cases that the

9The case that is listed in the Foors' proposed protective order that

is not listed in their answer is "Robinson v. State Farm Fire and Casualty

Company U.S. D.C., Northern District of Alabama Case No. 4:25-cv01260-RDP." The Foors do not explain in their answer the reason for their

omission of Robinson. State Farm discusses Robinson in its reply brief.

10Like the Foors' answer, United Policyholders' amicus curiae brief

states that "the circuit court's order only permits [the] Foors' counsel to utilize the information in matters in which they are actively representing

a similarly situated policy holder." United Policyholders brief, p. 18.

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Foors' counsel already had commenced at the time the protective order

was entered in which bad-faith claims involving roof damage had been

alleged, i.e., to the eight other cases listed in the Foors' proposed

protective order. The language in the protective order, in contrast to the

language in the Foors' proposed order, leaves out cases commenced by

other attorneys, does not use the more generalized description of "cases

... with similar claims of bad faith against State Farm," and limits the

sharing cases to those in which "parties ... have made claims" -- cases that

already had been commenced at the time the protective order was

entered by the circuit court.

State Farm's response to that straightforward interpretation of the

protective order is twofold. First, it asserts: "That narrow appellate

framing does not align with the briefing that procured the [protective]

Order." State Farm's reply brief, p. 3. But the fact that the Foors asked

for a broader sharing provision from the circuit court is irrelevant to what

the protective order actually provides. Second, State Farm insists:

"[The protective order] is not limited to the eight cases listed

in the Response Brief or to cases pending in Alabama. ... The

fact remains the Protective Order would allow for counsel to

be added to any bad-faith roof case against State Farm

nationwide -- especially given counsel's licensure in

Washington and Texas and the ability to appear pro hac vice

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elsewhere -- and then use that appearance as a basis to

disseminate State Farm's confidential information (including

to unspecified governmental entities)."

Id., p. 4.

We will address the government-sharing provision later in this

opinion, but State Farm's reading of the primary sharing provision

simply ignores the protective order's use of past-tense language in

describing the cases in which the discovery materials may be shared.

There is no language in the protective order authorizing the Foors'

counsel simply to affiliate with other counsel -- in other states in which

they are licensed or as pro hac vice counsel -- to share the discovery

material in cases beyond those that already have been commenced by

parties who are represented by the Foors' counsel.

In fact, if it was not for the performance of the Foors' counsel at oral

argument, we would find State Farm's reading of the protective order

entirely implausible. But we cannot ignore the fact that, at oral

argument, the Foors' counsel changed course from what was argued in

the Foors' answer by contending that the protective order would allow

them to share the discovery information in future cases commenced by

the Foors' counsel (or cases commenced by other counsel with whom the

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Foors' counsel associated) asserting bad-faith claims for roof damage

against State Farm.11 Because of that, we find it necessary to direct the

circuit court to clarify its protective order by listing the specific cases in

which the Foors' counsel are permitted to use the discovery materials

furnished to them by State Farm, which is, at most, the eight other cases

listed in the Foors' proposed protective order.

Limiting the sharing of the discovery materials to specific, existing

cases addresses the recurring objection some courts have expressed with

respect to proposed sharing provisions.

"[M]any of the courts that have authorized sharing protective

orders have required terms that ensure that sharing will be

limited to situations where there is a similarity between the

lawsuits. See, e.g., McDaniel v. Freightliner Corp., S.D.N.Y.

No. 99 Civ. 4292 ... (Mar. 23, 2000); see also Gunson v. BMO

Harris Bank, N.A., 300 F.R.D. 581, 584 (S.D. Fla. 2014). ...

And courts frequently reject sharing provisions where the

requesting party cannot specifically identify any collateral

proceedings. See, e.g., Menendez v. Wal-Mart Stores E. LP,

N.D. Ind. No. 1:10-cv-53 ... (Jan. 11, 2012)."

Byrd, 26 N.E.3d at 865. See, e.g., Foltz, 331 F.3d at 1132 ("[T]he collateral

litigant must demonstrate the relevance of the protected discovery to the

collateral proceedings and its general discoverability therein. ... Such

11We note that "an issue cannot be raised for the first time at oral

argument." Griggs v. NHS Mgmt., LLC, 419 So. 3d 12, 19 n.2 (Ala. 2024).

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relevance hinges 'on the degree of overlap in facts, parties, and issues

between the suit covered by the protective order and the collateral

proceedings.' " (quoting Laurie Kratky Dore, Secrecy by Consent: The Use

and Limits of Confidentiality in the Pursuit of Settlement, 74 Notre

Dame L. Rev. 283, 366-67 (1999))); Butler v. Daimler Trucks N. Am. LLC,

No. 19-2377-JAR, Jan. 10, 2020 (D. Kan. 2020) (not reported in Federal

Supplement) (rejecting the plaintiff's proposed sharing provision in a

protective order concerning confidential information because it would

have allowed the information to be shared with " 'lawyers involved in ...

contemplated lawsuits against Defendants,' " but allowing plaintiffs to

file "a targeted motion with the court" in the future if the plaintiffs show

"good cause to share specific information ... with a specific third-party");

Naramore v. Daimler Trucks N. Am., LLC, No. 1:18-CV-156 (LAG), Apr.

3, 2019 (M.D. Ga. 2019) (not reported in Federal Supplement) ("Plaintiff's

proposed sharing provision, as currently written, goes far beyond

disclosure to other parties involved in similar litigation. Thus, there

simply is 'no way to determine whether the discovery in this matter is ...

relevant to any' other party with whom Plaintiff seeks to share

discovery."); Alton v. Medtronic, Inc., No. 3:13-CV-409-PK, Mar. 13, 2014

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(D. Or. 2014) (not reported in Federal Supplement) (approving a sharing

provision in part because "Alton's proposed protective order would allow

discovery-sharing only with parties to litigation against Medtronic

raising factual and legal issues materially indistinguishable from those

raised in this litigation"); Lohr v. Zehner, No. 2:12cv533-MHT, Mar. 6,

2014 (M.D. Ala. 2014) (not reported in Federal Supplement) (rejecting a

proposed sharing provision in a protective order because "plaintiff has

failed to come forward with information concerning any 'substantially

similar' cases that are currently in progress or immediately contemplated

for filing; instead, plaintiff asserts only the speculative future interests

of unidentified non-parties and unnamed attorneys in unspecified

collateral actions"); Menendez v. Wal-Mart Stores E. LP, No. 1:10-cv-53,

Jan. 11, 2012 (N.D. Ind. 2012) (not reported in Federal Supplement)

(declining to approve a requested sharing provision in a protective order

because "[p]laintiffs have failed to provide any evidence that such

collateral lawsuits actually exist. Consequently, any purported gain in

judicial efficiency achieved in other cases through 'sharing orders' is

purely hypothetical in this case."); Harris v. Kellogg, Brown & Root

Servs., Inc., No. 08-563, Dec. 15, 2008 (W.D. Pa. 2008) (not reported in

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Federal Supplement) (stating that the cases in which sharing provisions

have been approved "involved not only the same defendant but also the

same cause of action as opposed to sharing based on the broad scope of

'negligent or wrongful activities' of Defendant" and concluding that, "[i]n

this Court's estimation, these decisions stand for the proposition that

while sharing may be preferred, confidential information is best

protected, if the court is able to determine with whom sharing is

permitted").

Such limited sharing also has the undeniable benefit of helping

litigation for all parties and the courts to be more efficient, speedy, and

inexpensive -- goals that are openly stated in Rule 1 of the Alabama Rules

of Civil Procedure. See, e.g., Ex parte Moore, 382 So. 2d 548, 550 (Ala.

1980) ("The Alabama Rules of Civil Procedure were adopted to effect an

integrated procedural system vital to the efficient functioning of the

courts and to secure the just, speedy and inexpensive determination of

every action.").

"Each plaintiff should not have to undertake to discover[]

anew the basic evidence that other plaintiffs have uncovered.

To so require would be tantamount to holding that each

litigant who wishes to ride a taxi to court must undertake the

expense of inventing the wheel. Efficient administration of

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justice requires that courts encourage, not hamstring,

information exchanges such as that here involved."

Ward v. Ford Motor Co., 93 F.R.D. 579, 580 (D. Colo. 1982). See, e.g.,

Foltz, 331 F.3d at 1131 ("Allowing the fruits of one litigation to facilitate

preparation in other cases advances the interests of judicial economy by

avoiding the wasteful duplication of discovery."); Royal Park Invs. SA/NV

v. Deutsche Bank Nat'l Tr. Co., 192 F. Supp. 3d 400, 407 (S.D.N.Y. 2016)

("Sharing discovery 'is an efficient and effective means of avoiding

duplicative and costly discovery, as well as avoiding unnecessary delay

in the adjudication of cases.' " (quoting Charter Oak Fire Ins. Co. v.

Electrolux Home Prods., Inc., 287 F.R.D. 130, 134 (E.D.N.Y. 2012)));

Wauchop v. Domino's Pizza, Inc., 138 F.R.D. 539, 546-47 (N.D. Ind. 1991)

("[T]he sharing of discovery materials ultimately may further the goals

of Rule 1 by eliminating the time and expense involved in 're-discovery.'

... Maintaining a suitably high cost of litigation for future adversaries is

not a proper purpose under Rules 1 or 26."); Cipollone v. Liggett Grp.,

Inc., 113 F.R.D. 86, 87 (D.N.J. 1986) ("By requiring each plaintiff in every

similar action to run the same gauntlet over and over again serves no

useful purpose other than to create barriers and discourage litigation

against the defendants. Good cause as contemplated under Rule 26 was

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never intended to make other litigation more difficult, costly and less

efficient."); Burlington City Bd. of Educ. v. United States Min. Prods. Co.,

115 F.R.D. 188, 190 (M.D.N.C. 1987) ("The sharing of information

between even diverse plaintiffs promotes speedy, efficient and

inexpensive litigation by facilitating the dissemination of discovery

material necessary to analyze one's case and prepare for trial. It reduces

repetitious requests and depositions, thereby conserving even

defendant's time and expense in having to respond or attend the

deposition. It conserves judicial resources by reducing the number of

discovery motions and disputes. Permitting plaintiffs to share

information helps counterbalance the effect uneven financial resources

between parties might otherwise have on the discovery process, thereby

protecting economically modest plaintiffs faced with financially well off

defendants and improving accessibility to justice."); Byrd, 26 N.E.3d at

864 ("It may make little sense to force litigants in different lawsuits to

'reinvent the wheel' with their discovery efforts. [Arthur R. Miller,

Confidentiality, Protective Orders, and Public Access to the Courts, 105

Harv. L. Rev. 427, 497 (1991)]. Sharing reduces the 'wasteful' and

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'unnecessary' duplication of discovery. Jepson[ Inc. v. Makita Elec.

Works, Ltd.], 30 F.3d [854,] 861 [(7th Cir. 1994)].").

Moreover, allowing sharing in those already existing cases in which

the Foors' counsel represent other plaintiffs with identical bad-faith

claims acknowledges the reality that the Foors' counsel cannot forget the

information once it is provided in this case. See BGC Partners, Inc. v.

Avison Young (Canada) Inc., No. 2:15-cv-00531-RFB-GWF, Aug. 11, 2017

(D. Nev. 2017) (not reported in Federal Supplement) ("Because of the

involvement of the same parties and attorneys in all of the cases, it is not

feasible to prevent confidential information produced in this case from

being possessed and known by the same parties and attorneys in the

related cases.").

D. The Nonapplicability of Miltope and Halsey

When State Farm was confronted with the foregoing limited

reading of the protective order's primary sharing provision, it continued

to insist -- in its reply brief and during oral argument -- that the

protective order still did not adequately protect State Farm's confidential

and trade-secret information. To support that assertion, State Farm

relied upon Ex parte Miltope Corp., 823 So. 2d 640 (Ala. 2001), and Ex

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parte W.L. Halsey Grocery Co., 897 So. 2d 1028 (Ala. 2004), two cases in

which this Court rejected protective orders entered by trial courts.

In Miltope, Miltope Corporation ("Miltope"), "a manufacturer of a

variety of defense industry and nondefense industry electrical and

technical products," 823 So. 2d at 641, was sued by Jefferson Daniel

Kaylor, Jr., a former employee who alleged that Miltope did not honor his

employment contract because Miltope failed to give Kaylor a commission

he claimed was owed under his contract for selling certain computer

equipment. Id. at 642. Significantly, Kaylor was employed by one of

Miltope's competitors at the time he commenced his action against

Miltope. In discovery, Kaylor requested documents from Miltope that

Miltope asserted contained confidential information. The trial court

ordered Miltope to produce the requested documents, but it "entered a

protective order limiting the uses and dissemination that Kaylor and his

attorneys could make of the documents." Id. This Court granted Miltope's

mandamus petition, concluding that Miltope did not have to produce the

requested documents "because of the irreparable harm the disclosure of

its trade secrets could do to Miltope." Id. at 646. The Court deemed the

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danger of Miltope's trade secrets falling into a competitor's hands to be

high given that Kaylor worked for a competitor.

In Halsey, W.L. Halsey Grocery Co. ("Halsey") sued The Merchants

Company, Inc. ("Merchants"), and three former employees of Halsey who

left to go work for Merchants. Halsey alleged that the former employees

and Merchants had disclosed or used Halsey's proprietary and

confidential information and trade secrets, had violated nonsolicitation

agreements, and were tortiously interfering with Halsey's customer

relationships. In discovery, "the parties negotiated a confidentiality

agreement to protect Halsey's customer information and any trade

secrets and to prevent a party from using discovery to gain an unfair

competitive advantage." 897 So. 2d at 1030-31. That confidentiality

agreement allowed parties to designate material as "confidential" or

"restricted confidential." Id. After disagreements ensued between the

parties concerning what material Halsey had designated as restricted

confidential, the trial court amended the confidentiality agreement " 'to

allow access to parties in this lawsuit to documents designated as highly

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confidential.[12] This allows [Halsey] to prove damages prospectively and

allows the Defendants to participate in the defense of their case' " Id. at

1032 (quoting trial court's order). In its petition for a writ of mandamus,

Halsey challenged the trial court's modification of the confidentiality

agreement. One of its arguments was that the modification "would allow

the disclosure of trade secrets," and it cited Miltope in support of its

argument. Id. at 1033. This Court granted Halsey's petition, concluding

in part:

"Because this information appears to meet the definition

of a 'trade secret' in the [Alabama Trade Secrets Act, § 8-27-1

et seq., Ala. Code 1975,] we rely upon Ex parte Miltope for the

resolution of this issue. Like Miltope Corporation, Halsey has

been ordered by the trial court to produce information that

can be disclosed to, among others, adverse parties to the

litigation. Like the defendant in Miltope, the employee

defendants left Halsey to work for a competitor. In Miltope,

we ordered trade-secret protection despite a protective order

prohibiting the defendant from using discovered information

for competitive purposes. Miltope, 823 So. 2d at 642. Here,

because the trial court removed the protections from all

documents designated as highly confidential, this information

is no longer insulated from use by the defendants for

competitive purposes."

Id. at 1035 (emphasis other than "despite" added).

12" '[H]ighly confidential[ ]' [is] a term that all parties agree is the

equivalent of 'restricted confidential.' " 897 So. 2d at 1031.

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Miltope and Halsey do not help State Farm's argument for at least

two reasons. First and foremost, in both Miltope and Halsey, there were

allegations that former employees had taken trade secrets and were

using them to help competitors. Indeed, in both of those cases, the former

employees were working for competitors and seeking trade-secret

information in discovery. That is a different context from the situation

presented here: the Foors are not competitors of State Farm and it has

not been alleged or shown that their counsel represent State Farm's

competitors in any case in which the protective order permits the sharing

of discovered information. The key reason this Court granted the

petitions in Miltope and Halsey was because of the direct threat of

competitors obtaining confidential or trade-secret information. That is

unsurprising given that "[c]ourts have presumed that disclosure to a

competitor is more harmful than disclosure to a noncompetitor."

American Standard Inc. v. Pfizer Inc., 828 F.2d 734, 741 (Fed. Cir. 1987)

(also citing supporting cases). State Farm has not established any such

threat here because of the sharing provisions. See, e.g., Sweet v. Polaris

Indus., Inc., No. 3:21-cv-40076-MGM, Mar. 31, 2022 (D. Mass. 2022) (not

reported in Federal Supplement) (finding that the defendants had

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"fail[ed] to explain how their competitors would come into possession of

their confidential information through the limited sharing clause

proposed by Plaintiff," a sharing clause that limited dissemination of

information "to lawyers for other plaintiffs in similar cases, and ...

required [those lawyers] to sign certifications agreeing to be bound by the

terms of the protective order, agreeing to return copies of any materials

produced under the terms of the protective order to [the defendants] at

the time a final dismissal or judgment is entered in this case, and

consenting to the jurisdiction of [the trial] court for purposes of

enforcement of the protective order"). In fact, the protective order

expressly states that "[s]uch materials shall not be produced to any

commercial competitor insurer of the party producing the data."

Second, Miltope and Halsey presented a different issue than the

one raised by State Farm in this case. Those cases concerned the trial

courts' decisions to require one party to disclose any confidential

information in discovery to the opposing party or parties. In fact, in

Halsey, the trial court had removed all protections from documents that

had been designated as highly confidential. In contrast, this case

concerns whether sharing confidential information with nonparties

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under the protective order's specific restrictions -- information that State

Farm is willingly providing in discovery to the Foors -- poses an

unnecessary risk of disclosure of State Farm's confidential or trade-secret

information to State Farm's competitors. Unlike in Miltope and Halsey,

State Farm's fear that the sharing provisions will lead to disclosure of its

confidential information to competitors is solely based on assumed

probability rather than on the fact that an opposing party is a competitor

or works for one. See Biazari v. DB Indus., LLC, No. 5:16-cv-49, Apr. 26,

2017 (W.D. Va. 2017) (not reported in Federal Supplement) ("[A]s a

matter of simple probability the risk of such disclosure (whether

intentional or inadvertent) increases as more individuals gain access to

this material."); Byrd, 26 N.E.3d at 864 ("Presumably, disclosure to

collateral litigants increases the risk of harm from the disclosure of

confidential information."). Other than hypothetical conjecture, State

Farm has not demonstrated how it would be harmed by allowing the

discovery materials to be shared in the specific existing cases in which

the Foors' counsel represent other plaintiffs asserting identical bad-faith

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claims against State Farm.13 Rather, continued relitigation of the same

dispute simply drives up costs for the parties, for the court system, and,

ultimately, for the taxpayers.

State Farm's comparisons to Miltope and Halsey also ignore the

safeguards stated in the protective order beyond the one we already have

required to be emphasized, i.e., that the sharing is limited to, at most,

the eight other cases the Foors' counsel already have commenced on

behalf of other plaintiffs in which bad-faith claims involving roof damage

have been asserted against State Farm. The protective order: (1) forbids

dissemination of the information "to any commercial competitor insurer

of the party producing the data"; (2) prohibits the information provided

from being "otherwise ... sold, offered, advertised or publicized to any

13See, e.g., United States v. Hooker Chems. & Plastics Corp., 90

F.R.D. 421, 425 (W.D.N.Y. 1981) ("In this case, movant Hooker has

alleged in a most conclusory fashion that it will suffer certain injuries.

No specific instances are cited where trade secrets will be disclosed or

where Hooker will be put at a competitive disadvantage."). Cf. Zakary A.

Drabczyk, Share with Caution: The Dangers Behind Sharing Orders, 65

Wayne L. Rev. 401, 421 (2020) ("[N]o substantial disclosure of

confidential information under a sharing order has been reported despite

decades of discovery sharing."); Dustin B. Benham, Proportionality,

Pretrial Confidentiality, and Discovery Sharing, 71 Wash. & Lee L. Rev.

2181, 2204-05 (2014) ("[D]ecades of experience with sharing protective

orders shows that violations are relatively rare and violations involving

a leak to a competitor are virtually nonexistent.").

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media representative"; (3) requires "anyone outside the confines of the

office of counsel" who receives the information to "agree in writing to the

terms of this Stipulated Order"; (4) requires the recipient of the

information to "maintain information in a secure and safe area and [to]

exercise due and proper care with respect to the storage, custody and use

of all such information"; (5) provides that "[t]he obligations of this

Protective Order shall survive the termination of this action" and that

the circuit court "will have continuing jurisdiction to enforce this

Protective Order irrespective of the manner in which this action is

terminated"; and (6) requires "each person or party who has received

information" to return the information to State Farm or to destroy the

information within 35 days "of the final determination of this action" and

to certify that it has been destroyed.

State Farm discounts all the foregoing "protections" by arguing that

"Miltope forecloses the notion that these kinds of generic safeguards cure

an order that permits broad access and unmonitorable dissemination."

State Farm's reply brief, p. 5. However, as we already have explained,

Miltope's rejection of the protections present in the protective order in

that case were squarely based on the fact that any confidential

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information was being shared with a plaintiff who was, at that point,

employed by a competitor to Miltope; it was not that the protections

themselves would be inadequate in a case that does not present such a

direct threat of confidential information falling into a competitor's hands.

Moreover, as we also have explained, the primary sharing provision does

not permit "broad access" to the information; it allows dissemination of

information in a specific set of cases.

E. Clarifying Jurisdiction in the Protective Order

We note, however, that oral argument demonstrated that the issue

of monitoring should be addressed. Counsel for the Foors stipulated in

oral argument that the protective order should have included a provision

that anyone with whom the discovery material is shared must agree to

be subject to the jurisdiction of the circuit court.14 Indeed, in cases in

14During oral argument, counsel for the Foors stated:

"In our sharing order, … we included a provision that

anyone with whom we share a document must agree to be

bound by that protective order and submit themselves to the

jurisdiction of the Alabama court. … That provision did not

make its way into the order. We will ask Judge Smithart to

include that in the order. We will stipulate here if that's a

better procedural way of doing it: that that provision that they

must subject themselves to the jurisdiction of the court be

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which sharing confidential information has been permitted outside the

specific case in which that information is first produced, it is common to

require those with whom the information is shared to agree to be subject

to the jurisdiction of the court that entered the protective order. See, e.g.,

Alton, No. 3:13-CV-409-PK (discussing a proposed protective order that

required that " '[c]ounsel for the Parallel Litigation must sign the

agreement attached ... prior to the receipt of any Shared Discovery,

confirming that he or she: ... agrees to be subject to the personal

jurisdiction of this Court for the enforcement of the Protective Order,

including, without limitation, violation of the confidentiality

provisions' "); In re New Motor Vehicles Canadian Exp. Antitrust Litig.,

included in the order. I think it was just an inadvertent

omission."

Supreme Court of Alabama, Supreme Court O/A Montgomery, Alabama,

YouTube (June 3, 2026, 25:00-25:46) (at the time this decision was

issued, this oral-argument session could be located at:

https://www.youtube.com/watch?v=Rl844PuQjNc).

The Foors' proposed protective order did include as an exhibit an

agreement that required signatories to agree to be bound by the terms of

the protective order. However, neither their proposed protective order

nor its attached exhibit contained any provision requiring that anyone

with whom the confidential information is shared must agree to be

subject to the jurisdiction of the Bullock Circuit Court.

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MDL No. 03-md-1532, Mar. 26, 2009 (D. Me. 2009) (not reported in

Federal Supplement) (implementing protective order requiring that

"Canadian Plaintiffs agree to submit to the jurisdiction of this Court for

the purposes of enforcement on this Protective Order" (emphasis

omitted)); Ruggeri v. Boehringer Ingelheim Pharms., Inc., No. 3:06 CV

1985 (JBA), Oct. 3, 2007, n.7 (D. Conn. 2007) (not reported in Federal

Supplement) ("Plaintiffs have agreed that 'confidential' information will

only be disclosed to putative class members if reasonably necessary for

litigation and only if the individuals, prior to disclosure, sign an

Agreement to Be Bound by Protective Order and submit to the Court's

jurisdiction to enforce the protective order."); Harris, No. 08-563

(discussing the following proposed addition to a protective order: " 'Before

giving access to any of the Protected Documents or the information

contained therein, each person described in paragraphs 2(k) and 2(l)

above shall be advised of the terms of this Protective Order, shall be given

a copy of this Protective Order, and shall agree in writing, by signing a

copy of this Protective Order, to be bound by its terms and to submit to

the jurisdiction of this Court.' ").

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As we noted in the rendition of the facts, the protective order

contained an exhibit -- designated as "Exhibit A" -- that consisted of the

exhibit agreement in which a signatory acknowledges receiving and

reviewing a copy of the protective order and agrees "to be bound by the

terms thereof." The pertinent wording of that exhibit agreement was

identical in the proposed protective orders from the Foors and from State

Farm. Based on the authorities referenced herein and the Foors'

stipulation in oral argument, the circuit court must modify that exhibit

agreement to state that a signatory also agrees to submit to the

jurisdiction of the Bullock Circuit Court for the purpose of enforcement

of the protective order.

Moreover, to make it clear that the exhibit agreement applies to

anyone to whom the confidential materials are disclosed, the following

paragraph in the protective order also must be modified:

"Confidential materials may be disclosed to attorneys or

other office personnel, experts, contractors, and consultants,

working with counsel for the requesting party in the

prosecution of the case. If anyone outside the confines of the

office of counsel is to receive information covered by this

Stipulation, they must agree in writing to the terms of this

Stipulated Order."

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The language in the protective order instead should give effect to

the principle that, before being given access to any of the confidential

materials, each person -- whether an expert, a contractor, or a consultant

working with counsel in this case or anyone involved in one of the other

listed cases -- must sign the exhibit agreement as modified in accordance

with the instructions herein.

F. The Protective Order's Return or Destroy Provisions

Oral argument also revealed a lack of clarity with respect to the

portion of the protective order that State Farm refers to in its petition

and reply brief as "the return or destroy provisions." State Farm's reply

brief, p. 6. The paragraph of the protective order that contains the return

or destroy provisions states:

"Within thirty-five (35) days of the final determination

of this action, each person or party who has received

information designated as CONFIDENTIAL, TRADE

SECRET, or SUBJECT TO PROTECTIVE ORDER shall be

obligated to return the same to State Farm, including any

copies, or to destroy such information and certify that it has

been destroyed, except that the recipient need not destroy or

return transcripts of depositions and materials filed with the

Court, and party may retain one archival copy of all pleadings

in the action, regardless of whether such pleadings (including

appendices), contain or refer to information designated as

CONFIDENTIAL, TRADE SECRET, or SUBJECT TO

PROTECTIVE ORDER; subject to the legal requirements for

maintenance and destruction of client files by the parties'

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counsel. Within seven (7) days of the final determination of

this action, counsel of record who has provided information

designated as CONFIDENTIAL, TRADE SECRET, or

SUBJECT TO PROTECTIVE ORDER to other individuals

must inform those individuals that the matter has reached

final determination and remind them of the return or

destruction obligation."15

(Capitalization in original.)

In its petition and reply brief, State Farm argued that the return

and destroy provisions "operate only after 'final determination of this

action,' which does nothing to prevent copying, use, and downstream

dissemination once the materials are routed into other cases or provided

to third-party agencies." State Farm's reply brief, p. 6. But once the

protective order is modified to ensure that anyone to whom the

confidential information is disseminated agrees to be bound by the terms

of the protective order and to be subject to the jurisdiction of the circuit

court, it becomes clear that those individuals also would be subject to the

return or destroy provisions.

However, during oral argument, counsel for the Foors was pressed

by members of this Court about whether the language of the foregoing

15State Farm's proposed protective order contained an identically

worded paragraph.

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quoted paragraph from the protective order requires any person involved

in another case who receives confidential information from this case to

return or destroy the information "[w]ithin thirty-five (35) days of the

final determination of this action," i.e., the Foor case. (Emphasis added.)

Counsel for the Foors steadfastly insisted that

"the order continues after the end of this particular Foor case

and the court retains jurisdiction for purposes of this order, so

the order would still be in full force and effect even though the

Foor case ends. So, it would continue to apply, and we would

continue to have these strict obligations as to how we handle

these documents."

Supreme Court of Alabama, Supreme Court O/A Montgomery, Alabama,

YouTube (June 3, 2026, 33:07-33:35) (at the time this decision was

issued, this oral-argument session could be located at:

https://www.youtube.com/watch?v=Rl844PuQjNc). Thus, counsel for the

Foors appeared to be saying that "this action" did not refer to the present

case but, rather, to any case to which the confidential information is

permitted to be disseminated.

The position of counsel for the Foors plainly contradicts the

language of the protective order. But the fault lies in the failure of the

protective order to reconcile the presence of the sharing provisions with

the language of the return and destroy provisions. Hypothetically, if the

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parties in the present case reached a settlement before one of the other

eight cases concluded, and confidential information from this case was

scheduled to be a trial exhibit in one of the other cases, it would be absurd

to suppose that the trial exhibit must be destroyed or returned before it

could be used at the trial. Similarly, hypothetically, if one of the other

cases ended before the present case, it would not make sense that

everyone in the other terminated case who was given the confidential

information from this case would be permitted to keep the confidential

information until the present case concluded.

The solution to that conundrum is for a provision to be added to the

protective order stating that termination of the present case shall not

require the return of confidential information shared in the other listed

cases if those cases are still in litigation. However, at the conclusion of

each of the other listed cases, the deadlines and requirements for return

or destruction of confidential information described in the protective

order shall apply in those cases as well. Moreover, each person bound by

the protective order shall continue to be subject to the jurisdiction of the

circuit court for the purpose of enforcement of the protective order

following the termination of the cases in which they are involved. Cf.

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Alton, No. 3:13-CV-409-PK. Language to the foregoing effect will prevent

any misunderstanding as to how long anyone is permitted to retain

possession of confidential information provided by State Farm through

discovery in this case.

G. Parker and Robinson Do Not Require a Different Outcome

State Farm's only other objection to the limited sharing provision

we have approved here is to argue that allowing any sharing provision

interferes with the discretion each trial court possesses in making

discovery determinations. That contention harks back to the notion we

rejected in Part B of this analysis that Rule 26 implicitly prohibits

discovery sharing. To support its argument, State Farm cites rulings in

two of the Alabama federal district-court cases in which the Foors'

counsel represent other plaintiffs who have asserted bad-faith claims

against State Farm concerning roof damage. On November 7, 2025,

Judge Nicholas A. Danella, United States Magistrate Judge for the

Northern District of Alabama, held a hearing in Parker v. State Farm in

which he rejected counsel for the plaintiffs' request to include a sharing

provision in a protective order that concerned State Farm's confidential

information. On January 21, 2026, Judge R. David Proctor, United States

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District Judge for the Northern District of Alabama, held a hearing in

Robinson v. State Farm concerning whether a sharing provision should

be included in the protective order for that case. Judge Proctor, like Judge

Danella, declined to include the proposed sharing provision.

In its reply brief, State Farm notes those rulings in Parker and

Robinson, and it contends that "[a]llowing [the Foors] to use a state-court

sharing mechanism to channel protected materials into those federal

actions (and out-of-state cases) would undermine those courts' discovery

rulings and spark collateral admissibility fights -- hindering, not

advancing, efficiency." State Farm's reply brief, p. 9. In its petition, State

Farm more generally argues that the sharing provision

"undermines the independent authority of every other

court -- federal or state -- in which [the Foors'] counsel might

appear. Every tribunal has the exclusive right, under its own

Rule 26(c), to decide whether confidential and trade secret

information should be disclosed at all and, if so, under what

protective conditions."

State Farm's petition, p. 22.

However, State Farm misunderstands the decisions that were

presented to those federal district courts. In Parker and Robinson, the

federal district courts were deciding whether to include the more

expansive sharing provisions proposed by counsel in those cases; they

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were not ruling on the provisions that are before us in Judge Smithart's

order.16 As we have extensively detailed, the provisions at issue here are

much more limited in scope than the provisions included in the proposed

protective order submitted by the Foors' counsel. Moreover, the fact that

the circuit court in this case permitted sharing provisions in the

protective order clearly had no binding effect on the courts in Parker and

Robinson, which declined to allow the protective orders in those cases to

include sharing provisions. Each court did make its own independent

finding about the propriety of including a sharing provision.

Likewise, State Farm's contention that allowing information

produced by State Farm in this case to be shared in those other cases

undermines those courts' authority over discovery in their cases

16We also note that Judge Danella and Judge Proctor entered their

rulings in Parker and Robinson, respectively, after Judge Smithart

entered the protective order in this case. Thus, Judge Smithart did not

have the benefit of those rulings in reaching his decision. In that respect, it is doubtful that this Court may even consider the substance of the

rulings in Parker and Robinson because they were not before the circuit

court. See, e.g., Ex parte Ebbers, 871 So. 2d 776, 786 (Ala. 2003) ("In

determining, on mandamus review, whether the trial court exceeded the

limits of its discretion, 'the appellate courts will not reverse the trial court on an issue or contention not presented to the trial court for its

consideration in making its ruling.' " (quoting Ex parte Wiginton, 743 So.

2d 1071, 1073 (Ala. 1999))).

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misunderstands the matter presented for decision to the circuit court

concerning the inclusion or noninclusion of the sharing provisions. A

court that concludes that a sharing provision is appropriate does so based

on an initial assessment that "the protected discovery is sufficiently

relevant to the collateral litigation that a substantial amount of

duplicative discovery will be avoided" by including the sharing provision.

Foltz, 331 F.3d at 1132. This is because "[t]he court that issued the order

is in the best position to make the relevance assessment for it presumably

is the only court familiar with the contents of the protected discovery."

Id. But that court "does not decide whether the collateral litigants will

ultimately obtain the discovery materials" because "[t]he disputes over

the ultimate discoverability of specific materials covered by the

protective order must be resolved by the collateral courts." Id. at 1133.

See, e.g., Choi v. 8th Bridge Cap., Inc., No. 2:17-cv-08958-CAS-AFMx,

Mar. 30, 2021 (C.D. Cal. 2021) (not reported in Federal Supplement)

("The Court need only make 'only a rough estimate of relevance' to

determine 'whether the protective order will bar the collateral litigants

from gaining access to the discovery already conducted.' Foltz, 331 F.3d

at 1132-1133. ... The Court makes no finding regarding the relevance of

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any specific documents to the [Los Angeles County Superior] Court

action."); Buntin v. Schlumberger Tech. Corp., No. 3:16-cv-00073-TMB,

Nov. 29, 2018, n.24 (D. Alaska 2018) (not reported in Federal

Supplement) ("The Court notes that it is the Alaska state court's decision

as to whether the public documents should ultimately be disclosed in

response to the subpoena and notice; this Court's determination is only

as to the scope of the Protective Order."); Creative Compounds, LLC v.

Adorno & Yoss LLP, No. 1:09CV129 SNLJ, Dec. 12, 2013 (E.D. Mo. 2013)

(not reported in Federal Supplement) ("In amending the protective order,

this Court does not decide whether movant will ultimately obtain the

discovery materials. The objections raised by Creative Compounds as to

whether some of the documents are subject to the attorney-client

privilege, whether the documents are relevant, that the discovery

deadline in the L & F Litigation has expired, and that it would be unduly

burdensome for it to review the voluminous records are objections to be

brought in the L & F Litigation [in the United States District Court for

the Southern District of Florida]."). In other words, there is a difference

between what a protective order permits with respect to sharing

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information in other cases and how other courts allow that shared

information to be used in their cases.

State Farm's complaint also rings hollow given that, in previous

cases commenced by the Foors' counsel on behalf of other plaintiffs, it has

agreed to protective orders -- absent a sharing provision -- that allowed

the plaintiffs in those cases to have access to similar confidential and

trade-secret information. That also occurred in Parker after the

protective order was entered in this case. Indeed, in its reply brief, State

Farm openly states: "State Farm routinely produces relevant confidential

materials once a standard protective order is in place, and it has agreed

to do so here." State Farm's reply brief, p. 8. As the Foors observe:

"State Farm presumably would be agreeable to entering its

proposed [protective] order in other similar cases, … and [the

Foors] would be entitled to see these documents anyway.

"The only difference relates to timing and use of judicial

resources. By setting up a system wherein plaintiffs have to

agree to a protective order in each case to see these same

materials, State Farm can refuse to produce obviously

relevant discovery materials until it agrees to a protective

order, a process that can take months in each case. As a result,

the effect of State Farm's position is to create unnecessary

delay and waste of judicial resources …."

Foors' answer, pp. 21-22 (emphasis added). "[T]he purpose of limiting the

dissemination of proprietary information is to protect the producing

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party from competitive disadvantage in the marketplace, not to make

litigation more burdensome for its adversaries." Biazari, No. 5:16-cv-49.

H. The Government-Sharing Provision

The other provision in the protective order to which State Farm

objects concerns sharing the confidential materials with government

entities. As we noted in the rendition of facts, that provision states:

"Any such materials may be disclosed to any governmental

agency, which has oversight authority to study issues

pertinent to the insurance product at issue. However, at least

10 days before such data is furnished to the relevant

governmental agency, the party making such disclosure shall

give notice to the party that produced the materials in

discovery to allow that party the opportunity to ask the

governmental agency to maintain the materials as

confidential."

State Farm complains that the foregoing provision permits

disclosure of its confidential and trade-secret information to "unnamed

governmental entities nationwide." State Farm's petition, pp. 2-3. State

Farm posits that, "[o]nce disclosed to such agencies, State Farm's

confidential and trade secret information could be subject to [Freedom of

Information Act] or state open-records requests, exposing it to the public

and State Farm's competitors." Id., p. 4. State Farm further objects that

the only limitation in the protective order against government agencies

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is that State Farm can "ask the agency to maintain confidentiality";

nothing requires that "the agency agree to be bound" by the terms of the

protective order or by the jurisdiction of the circuit court. State Farm's

reply brief, p. 6 (emphasis in original).

In oral argument, State Farm asserted that, in contrast to the

protective order's government-sharing provision, its own proposed

protective order permitted confidential information to be shared with

only the Alabama Department of Insurance and not with other

government entities. State Farm also asserted that its protective order

would have required a person from the Alabama Department of

Insurance to sign the exhibit agreement in which a person agrees to be

bound by the protective order.

However, in both respects, State Farm's assertions are incorrect.

State Farm's proposed protective order permitted confidential and tradesecret information to be disclosed to "the Alabama Department of

Insurance, law enforcement officers, and/or other governmental agencies,

as permitted or required by applicable state and federal law." (Emphasis

added.) Thus, although State Farm's proposed protective order did

expressly name the Alabama Department of Insurance, it also allowed

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disclosure of confidential information to "unnamed governmental

entities." Moreover, the provision in State Farm's proposed protective

order did not require a representative of the Alabama Department of

Insurance or "other governmental entities" to sign the exhibit agreement,

and so such entities would not have been bound by the terms of the

protective order or have been subject to the jurisdiction of the circuit

court for the purpose of enforcement of the protective order. Likewise,

State Farm's proposed protective order did not prohibit the confidential

information from being subject to a federal Freedom of Information Act

("FOIA") request or a state open-records request.17

In short, there is no discernable difference between State Farm's

proposed protective order and the circuit court's protective order

concerning the disclosure of confidential information to government

entities. Indeed, in its reply brief, State Farm makes no attempt to

differentiate the provision in its proposed protective order from the

provision in the circuit court's protective order, and, as we have noted, in

17Itis unclear how a protective order could shield information

provided to a government entity from a FOIA request or a state-open

records request, which is perhaps why State Farm offered no such

language in its own proposed protective order.

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oral argument, State Farm simply misstated the contents of its own

proposed protective order with regard to this issue. Given those facts, we

conclude that the circuit court did not exceed its discretion in any respect

regarding its inclusion of the government-sharing provision in the

protective order.

IV. Conclusion

There is nothing inherently wrong with the inclusion of a sharing

provision in a protective order. Such a provision is not contrary to the

Rules of Civil Procedure in general or to Rule 26 in particular. However,

common sense dictates that sharing provisions must contain limitations.

After all, "[i]t is well-settled that discovery in one matter is not intended

to afford a party an opportunity to seek information for an unasserted

claim, or a yet-to-be filed case." Strough v. General Motors LLC, No. 18-cv-03303-PAB-NRN, June 4, 2019 (D. Colo. 2019) (not reported in Federal

Supplement). Limitations are particularly important when, as in this

case, a protective order concerns the production of confidential,

proprietary, or trade-secret information. In this case, the circuit court's

protective order included several meaningful restrictions intended to

protect information State Farm designates as confidential.

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However, we conclude that the protective order must be modified to

ensure that the information is not shared in a manner that harms State

Farm. First, the protective order must be clarified to list the specific cases

in which the Foors' counsel are permitted to use the discovery materials

furnished to them by State Farm, which is, at most, the eight other cases

listed in the Foors' proposed protective order. Second, the circuit court

must modify the exhibit agreement attached to the protective order so

that it will state that a signatory also agrees to submit to the jurisdiction

of the Bullock Circuit Court for the purpose of enforcement of the

protective order. Third, the protective order must state that, before

access is given to any confidential materials, each person -- whether an

expert, a contractor, or a consultant working with counsel in this case or

anyone involved in one of the other listed cases -- must sign the exhibit

agreement that binds the signatory to the provisions of the protective

order and renders the signatory subject to the jurisdiction of the circuit

court for the purpose of enforcement of the protective order. Finally, the

protective order must state that termination of the present case shall not

require the return of confidential information shared in the other listed

cases if those cases are still in litigation. However, at the conclusion of

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each of the other listed cases, the deadlines and requirements for return

or destruction of confidential information described in the protective

order shall apply in those cases as well. Moreover, each person bound by

the protective order shall continue to be subject to the jurisdiction of the

circuit court for the purpose of enforcement of the protective order

following the termination of the cases in which they are involved.

Of course, by requiring the modifications to the protective order

described herein, we do not intend to limit the circuit court's inherent

discretion to add any further limitations it may deem necessary as the

case progresses. Indeed, the protective order provides as much, stating

that the circuit court "[s]hall retain jurisdiction to modify the terms of

this Protective Order." Because the relief we order is not the full relief

requested by State Farm, we deem the petition to be granted in part and

denied in part.

PETITION GRANTED IN PART AND DENIED IN PART; WRIT

ISSUED.

Stewart, C.J., and Sellers and McCool, JJ., concur.

Cook, J., concurs in part and concurs in the result, with opinion.

Bryan, J., concurs in part and dissents in part, with opinion.

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Parker, J., concurs in the result in part and dissents in part, with

opinion.

Shaw, J., dissents, with opinion, which Wise, J., joins.

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COOK, Justice (concurring in part and concurring in the result).

I concur with the main opinion except as to Part III.H., which

discusses the government-sharing provision in the circuit court's

protective order. As to that part, I concur only in the result.

The main opinion correctly rejects State Farm's assertions that (1)

its proposed protective order allowed sharing with only the Alabama

Department of Insurance and (2) its proposed protective order required a

representative of the Alabama Department of Insurance to sign the

exhibit agreement. Neither of those assertions are accurate.

However, the main opinion then contends that "there is no

discernable difference between State Farm's proposed protective order

and the circuit court's protective order concerning the disclosure of

confidential information to government entities." ____ So. 3d at ____

(emphasis added). I do not believe that is an accurate characterization

of the following language in those documents:

Circuit Court's Protective State Farm's Protective Order

Order

"Any such materials may be "8. Information designated …

disclosed to any governmental by State Farm shall be disclosed

agency, which has oversight only to the following persons:

authority to study issues pertinent

to the insurance product at issue. "….

..."

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"(h) the Alabama

Department of Insurance,

law enforcement officers,

and/or other government

agencies, as permitted or

required by applicable state

and federal law."

(Emphasis added.)

Stated simply, the circuit court's protective order allows disclosure

to "any governmental agency" with oversight "pertinent to the insurance

products at issue," while State Farm's proposed order limits the

disclosure to "the Alabama Department of Insurance, law enforcement

officers, and/or other government agencies, as permitted or required by

applicable state and federal law." (Emphasis added.) In my view, the

language in the circuit court's protective order sweeps more broadly than

State Farm's proposed order in at least two ways.

First, I read State Farm's proposed order as a limitation permitting

sharing only to relevant "Alabama" government agencies. The explicit

demarcation of the "Alabama" Department of Insurance should restrict

how to interpret the phrase "other government agencies." See, e.g., Ex

parte City of Millbrook, 304 So. 3d 202, 205-06 (Ala. 2020) (plurality

opinion) (explaining that, under the associated-words canon, or noscitur

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a sociis, " ' general and specific words' " associated with one another

" ' take color from each other,' " such that general terms are restricted to

a meaning analogous to the specific terms) (citation omitted). I do not

read State Farm's language to permit sharing discovered documents to,

say, the New York Department of Insurance, and I cannot envision an

argument supporting a provision authorizing the sharing of State Farm's

trade secrets with the New York Department of Insurance.

Second, in the context of trade secrets, "permitted" means that

federal or state trade-secret law expressly permits the sharing of the

documents at issue, not simply that such laws fail to prohibit the sharing

of those documents. An example of a federal law that expressly permits

a person to give the government trade secrets that belong to someone else

is 18 U.S.C. § 1833(b). That section provides that an individual is not

liable "under any Federal or State trade secret law for disclosing of a

trade secret that … is made … solely for the purpose of reporting or

investigating a suspected violation of law." 18 U.S.C. § 1833(b)(1)(A)(ii).

In other words, even under federal law, such persons would be

"permitted" to make -- that is, would not be liable for making -- such a

disclosure. Absent such authority under 18 U.S.C. § 1833(b) (or other

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similar provisions), a person would not be "permitted" to disclose

someone else's trade secrets to anyone.

In light of the foregoing, I would support use of the governmentsharing language that State Farm included in its proposed order because,

as State Farm notes, the current government-sharing provision may

effectively mean that its confidential information will not be protected at

all.

Despite my concerns here, State Farm did not raise either of these

legal arguments to the circuit court or in its petition for the writ of

mandamus to our Court. For this reason and because this case is before

us on mandamus, I must concur in the result on this issue. However, our

decision today should not be read as agreeing with the use of this type of

government-sharing provision in other cases going forward or even as

agreeing with the use of State Farm's proposed government-sharing

language in other cases going forward.18

18I recognize the concerns raised by Justices Shaw and Parker as to

the sharing provisions generally. However, the main opinion makes clear

that the relevant question is what provisions should be included in the

protective order entered by the circuit court -- not whether discovery

should be produced. I note that the main opinion expressly limits the

nonparty-sharing provision to "specific existing cases in which the Foors'

counsel represent other plaintiffs asserting identical bad-faith claims."

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____ So. 3d at ____. Although this language allows for sharing, this

clarifying language places tight controls on the sharing of discovery. In

crafting a protective order in these types of situations, a trial court has discretion, and I believe that the language in the protective order, as

clarified by the main opinion, shows that the circuit court did not abuse

that discretion. I further believe that the protective order, as clarified by the main opinion, balances the need to promote the efficient, speedy, and

inexpensive resolution of litigation while protecting the legitimate value

of the confidential and trade-secret information of State Farm. However,

to be clear, just because the circuit court acted within its discretion to

include the sharing provisions in the protective order in this particular

case does not mean that sharing provisions should be commonplace. In

my view, because of the risks associated with the disclosure of

confidential and trade-secret information, sharing provisions should be

rarely used and tightly controlled. In fact, in my view, the circuit court

in this case would also have been within its discretion to not include

sharing provisions.

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BRYAN, Justice (concurring in part and dissenting in part).

I concur in the main opinion insofar as it denies the petition on the

ground that the circuit court did not clearly exceed its discretion in

issuing the protective order containing "sharing" provisions. However, I

dissent from the main opinion insofar as it grants the petition and

instructs the circuit court to modify the protective order in various

ways. Although those modifications would improve the protective order,

the issue before us is whether the circuit court "clearly exceeded its

discretion" by entering the order. Ex parte Ocwen Fed. Bank, FSB, 872

So. 2d 810, 813 (Ala. 2003). Of course, this standard of review is very

deferential to the circuit court. Despite any weaknesses in the protective

order, it does not appear to me that the circuit court clearly exceeded its

discretion here. Further, it does not appear that State Farm asks for the

ordered modifications, which address shortcomings in the sharing

provisions. Instead, State Farm seeks the removal of the sharing

provisions; it asks us to vacate the protective order and to order the

circuit court to issue a protective order that "does not contain a 'sharing'

provision granting power to Plaintiffs' counsel to disclose State Farm's

confidential material to third parties." State Farm's petition at

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26. Because I do not believe that the circuit court clearly exceeded its

discretion by issuing the order with the sharing provisions, I would

simply deny the petition rather than grant it in part and deny it in part.

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PARKER, Justice (concurring in the result in part and dissenting in

part).

I agree with the main opinion in many respects. I agree, for

example, that this case gives us no occasion to make "[s]pecific

[d]eterminations" about the confidentiality of any information State

Farm will produce during discovery. ___ So. 3d at ___. I agree that the

challenged order is considerably more protective of State Farm's

confidential information than would appear from the parties' arguments.

And I agree that this Court's decisions in Ex parte Miltope Corp., 823 So.

2d 640 (Ala. 2001), and Ex parte W.L. Halsey Grocery Corp., 897 So. 2d

1028 (Ala. 2004), do not squarely resolve any issue before us.

Having said all this, I remain concerned about the broader theory

underlying the nonparty-sharing provision at issue in this case. To me,

the idea that a court may affirmatively allow a party's top-secret business

information to be used in other litigation by nonparties -- at least absent

some documented need for it in the case at hand -- runs counter to the

text and structure of our Rules of Civil Procedure. It also seems to run

counter to other courts' (nonbinding) precedent, at least the subset of that

precedent I find persuasive.

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Rule 26 permits a court, "for good cause shown," to issue an order

"to protect a party or person" from "undue burden." Ala. R. Civ. P. 26(c).

Among the measures available is a "[p]rotective [o]rder[]" under Rule

26(c)(7) requiring that confidential business information -- specifically, a

"trade secret or other confidential research, development, or commercial

information" -- either (1) "not be disclosed" or (2) "be disclosed only in a

designated way." That language undoubtedly gives a court some

authority to regulate disclosure of confidential business information

during discovery. But how much?

We know for one thing that a court may exercise this authority only

to "protect" the confidential business information in question -- that is, to

"cover or shield" the information "from exposure." Merriam-Webster's

Collegiate Dictionary 1275 (12th ed. 2026). It also seems reasonable to

assume that "disclosure [of such information] to collateral litigants

increases the risk of harm" to the business. Byrd v. U.S. Xpress, Inc., 26

N.E.3d 858, 864 (Ohio Ct. App. 2014). In my view, these considerations

cut against the validity of nonparty sharing -- even on the face of Rule

26(c)(7).

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On the other hand, the relevant language is admittedly ambiguous.

A court's authority to allow disclosure of protected information "only in a

designated way" might allow limited nonparty sharing along the lines set

forth in the main opinion. But it might just as well disallow nonparty

sharing entirely. Under this latter view, a Rule 26(c)(7) protective order

would still allow disclosure of confidential business information, just for

purposes related to the current pending case. For example, the order

could specify who on the plaintiff's litigation team may receive the

information, subject to whatever safeguards the court reasonably deems

appropriate. But the authorized disclosure would be only for the purpose

of prosecuting a particular plaintiff's claims in a particular pending case.

In my view, the structure of the Rules resolves any such ambiguity

in favor of this latter reading. The Rules are all organized around the

management of individual civil actions. This theme emerges at the

beginning of the Rules, where Rule 3 proclaims that "[a] civil action"

begins by filing "a complaint" with "the court." Ala. R. Civ. P. 3(a). And it

carries through to the end, where Rule 58 says that a judgment will

suffice if, among other requirements, "it" is signed or initialed by "[the]

judge." Ala. R. Civ. P. 58(a). When the Rules depart from the ordinary

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model of a single civil action -- think: joinder of parties, class actions,

intervention, consolidation -- they do so only expressly. See Ala. R. Civ.

P. 19 (joinder), 23 (class actions), 24 (intervention), 42 (consolidation).

These departures thus only underscore that the Rules govern a single,

particular civil action unless expressly provided otherwise.

The discovery rules parallel the architecture of the Rules as a

whole. Rule 26(b)(1), for example, permits discovery only of matters

relevant to the subject of "the pending action" and proportional to the

needs of "the case." And the various methods of discovery -- for example,

depositions or interrogatories -- ordinarily become available only "[a]fter

commencement of the action." Ala. R. Civ. P. 30(a) (oral depositions); see

also, e.g., Ala. R. Civ. P. 31(a) (written depositions); 33(a)

(interrogatories); 34(b) (document production).

But special rules nevertheless exist for discovery efforts outside the

confines of a currently pending case. When a party wants to compel

discovery before an action is commenced, the party must follow special

procedures set forth in Rule 27, "Discovery Before Action or Pending

Appeal." And if a party wants to compel discovery from someone other

than a party, the party must ordinarily invoke the Rule 45 subpoena

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process. In other words, once again, the Rules govern discovery within a

particular case unless expressly provided otherwise.

Here, there is nothing in Rule 26(c)(7) that expressly provides any

reason to think that it departs from the ordinary, single-action

framework described above. I thus read Rule 26(c)(7) as allowing a court

to permit disclosure of confidential business information "only in a

designated way" for purposes of the current lawsuit. Of course, the

nonparty-sharing provision at issue here, even as carefully refined by the

main opinion, violates that principle. To my knowledge, nothing in the

materials before us demonstrates why or how the nonparty-sharing

provision is justified by the needs of the current litigation.

II.

Text and structure aside, what about precedent? There is

considerable precedent in the area of nonparty-sharing provisions, and it

would be impossible for anyone to exhaustively or comprehensively

survey it all. This body of precedent, moreover, strikes me as sprawling

and disjointed. Nevertheless, two themes emerge. Each of them

illustrates that not all precedents are created equal -- that some decisions

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are more persuasive than others. And here, the more persuasive

precedent reinforces my concerns about nonparty-sharing provisions.

First, the legal grounds originally asserted in support of nonpartysharing provisions appear to have become obsolete. In the 1970s, sharing

advocates cited the First Amendment, arguing that court orders

restricting use of information obtained in discovery would violate their

right to free speech. See Dustin B. Benham, Proportionality, Pretrial

Confidentiality, and Discovery Sharing, 71 Wash. & Lee L. Rev. 2181,

2194 (2014). The United States Supreme Court eventually rejected that

approach, however, in a decision multiple courts have read as "effectively

remov[ing] the First Amendment from the protective-order analysis." Id.

(citing Seattle Times Co. v. Rhinehart, 476 U.S. 20 (1984)).

Similarly, sharing advocates at one point cited a former version of

Federal Rule 5, which required all discovery materials to be filed in court.

See id. at 2195. To the sharing advocates, this rule created a right of

public access to unredacted discovery materials. See id. But "[a] series of

rules amendments, culminating in a 2000 amendment that [generally]

forbids parties from filing discovery … effectively ended" this Rules82

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based argument as well. Id. at 2196. The current Alabama Rules

similarly do not allow filing of discovery materials. See Ala. R. Civ. P.

5(d).

There may be other legal grounds that justified early nonpartysharing provisions. But legal changes like the ones described here at least

offer a plausible explanation for why the body of precedent concerning

nonparty sharing may have shifted over time.

Second, many of the more recent cases rejecting nonparty sharing

turn on just the sort of textual and structural concerns outlined above.

See Part I. In one case, a federal court rejected a "preemptive" sharing

provision precisely because "the sole purpose of discovery is to assist the

parties to litigation in the preparation of their specific case for trial or

settlement." Shaw v. Shandong Yongsheng Rubber Co. Ltd., No. 1:18-cv00867-RM-SKC, Oct. 30, 2019 (D. Colo. 2019) (not reported in Federal

Supplement). In other cases, federal courts rejected sharing at least in

part because the plaintiff had failed to demonstrate prejudice to "her

ability to … support … her own claims," Clippard ex rel. Clippard v.

Yamaha Motor Corp., No. 5:14-CV-83-R, Mar. 17, 2015 (W.D. Ky. 2015)

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(not reported in Federal Supplement), or because the "Plaintiff ha[d]

made no showing that sharing … is necessary and relevant to this case,"

Easterwood v. Husqvarna Prof'l Pros., Inc., No. 2:19-CV-1065-WKW-WC,

July 27, 2020 (M.D. Ala. 2020) (emphasis added) (not reported in Federal

Supplement). One court put it even more bluntly: "[I]nclusion of a

'sharing' provision in the protective order is not necessary nor warranted

for the purposes of this litigation, and that is the only important

consideration." Ginn v. Stryker Corp., No. 1:09-cv-01939-HGD, May 14,

2020 (N.D. Ala. 2010) (not reported in Federal Supplement).

III.

The nonparty-sharing literature features a healthy debate about

whether it produces efficiency in terms of reduced time and expense of

discovery -- values and ideals that are laudable indeed. But we must

pursue those values within the rules as they are written.

To that end, it bears emphasizing that the unavailability of the kind

of nonparty-sharing provision at issue here, unjustified by the needs of

the current case, would not seriously impede the plaintiffs' counsel from

advocating on behalf of their other clients. Nothing in my opinion

forecloses their use of State Farm's information that will not be protected

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as confidential. Nor does anything in my opinion require them to

"unlearn" what they might glean from any protected confidential

information they encounter here -- so long as they do not disclose the

information itself. And if State Farm needlessly resists discovery in those

other matters, the courts will be there to intervene. See Ala. R. Civ. P. 37

(discovery sanctions). Courts should guard against "evasive or

incomplete" discovery answers, Ala. R. Civ. P. 37(a)(3), just as they

should enforce the requirements that discovery requests be "relevant"

and "proportional to the needs of the case," Ala. R. Civ. P. 26(b)(1).

* * *

I agree that we cannot grant State Farm's petition as to the

government-sharing provision either because of invited error, see ___ So.

3d at ___, or because of a failure to preserve the relevant arguments, see

___ So. 3d ___ (Cook, J., concurring in part and concurring in the result).

I therefore concur in denying State Farm's petition as to this provision,

even as I dissent more broadly (and even though I would be skeptical of

such a provision if reviewing it unencumbered by the procedural posture

of this case).

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SHAW, Justice (dissenting).

In its petition for the writ of mandamus, State Farm Fire and

Casualty Company ("State Farm") challenges a protective order entered

by the Bullock Circuit Court allowing certain information disclosed in

discovery to be "shared" by the respondents, James M. Foor and Krystina

Foor, with parties in other cases. In my view, as recognized in part by

the main opinion, the trial court exceeded its discretion by entering that

order.

Generally speaking, persons have inherent privacy interests in

their own information, documents, and intellectual property. Those

interests, as weak as they may sometimes be, are justifiably imposed

upon in civil litigation, where parties have the ability, in pursuit of their

claims or defenses, to seek certain information from others through

discovery. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 35 (1984)

(noting generally that "discovery … may seriously implicate privacy

interests of litigants and third parties"). Discovery's imposition upon

parties' interests in the privacy of their information is regulated by Rule

26, Ala. R. Civ. P. Rule 26(b)(1) states the general scope of discovery as

follows:

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"Parties may obtain discovery regarding any matter, not

privileged, which is: (i) relevant to the subject matter involved

in the pending action, whether it relates to the claim or

defense of the party seeking discovery or to the claim or

defense of any other party; and (ii) proportional to the needs

of the case, considering the importance of the issues at stake

in the action, the amount in controversy, the parties' relative

access to relevant information, the parties' resources, the

importance of the discovery in resolving the issues, and

whether the burden or expense of the proposed discovery

outweighs its likely benefit. It is not ground for objection that

the information sought will be inadmissible at the trial if the

information sought appears reasonably calculated to lead to

the discovery of admissible evidence."

(Emphasis added.)

The scope of discovery is, by necessity, generously broad, but there

are limits: only the parties to the action may obtain information through

discovery, and the information sought must be relevant to the issues in

that particular action. The rule focuses on the actual parties, in this case,

the Foors, and the specific case before the trial court. It imposes

prerequisites on the ability to obtain discovery. Importantly, however, it

creates no right of imposition (1) in favor of nonparties, (2) regarding

irrelevant issues, or (3) in cases that are not pending before the trial

court. It is true that Rule 26 does not explicitly state what can be done

with information obtained in discovery. Specifically, the rule does not

address whether a party in a case who can obtain certain information

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through discovery may pass it on to others who otherwise could not obtain

it in that case. But other parties in other cases have no right or

justification to seek discovery outside their own cases. Instead, parties

must demonstrate in their own cases that what they seek is discoverable

under Rule 26. The sharing of information obtained through discovery,

as State Farm argues, evades the application of Rule 26 in other cases,

which may involve materially distinguishable facts. Further, I note that

nothing in the rule provides a court with the authority to specifically

authorize the distribution of the fruits of discovery.19

The issue whether information obtained through discovery,

generally, may be shared is not before us in this matter. Instead, this

case involves a narrow type of information sought to be obtained and

shared: trade secrets or other confidential research, development, or

19This is not to suggest that information obtained in discovery is, by

default, secret. Such information often wends its way into public

availability by being included in public court records or introduced at

trial. Court records and in-court proceedings are generally open to the

public, with limited exceptions. Further, testimony in depositions and

information in documents often invoke little concern with privacy,

confidentiality, and public disclosure; thus, the imposition created by

discovery often has few material or objectionable consequences to the

producing party, who may have no objection to the sharing or publication

of the information obtained.

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commercial information. Under Rule 26, such information may be

protected from disclosure "or be disclosed only in a designated way." Rule

26(c)(7). It has greater protections from exposure. See Ex parte Miltope

Corp., 823 So. 2d 640, 645 (Ala. 2001) ("Trade secrets should receive

greater protection from discovery because they 'derive[] economic value

from being generally unknown and not readily ascertainable by the

public.' " (citation omitted)); Ex parte W.L. Halsey Grocery Co., 897 So.

2d 1028, 1035 (Ala. 2004) (holding that the trade-secret information at

issue in that case was "entitled to protection in excess of that provided in

the normal discovery process"); and Rule 507, Ala. R. Evid. ("A person

has a privilege ... to refuse to disclose and to prevent other persons from

disclosing a trade secret .... If disclosure is directed, the court shall take

such protective measures as the interest of the holder of the privilege and

of the parties and the interests of justice require."). Cf. Ex parte

Industrial Warehouse Servs., Inc., 262 So. 3d 1180, 1187 (Ala. 2018)

(rejecting an argument that certain trade secrets and confidential

information sought in discovery and subject to a protective order "should

be made public").

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Rule 1(c), Ala. R. Civ. P., states that the Rules of Civil Procedure

"shall be construed and administered to secure the just, speedy and

inexpensive determination of every action." Certainly, the sharing of

information obtained in discovery in one case with parties in another case

could, depending on the circumstances, be expeditious and reduce

litigation costs.20 However, a discovery-sharing scheme that, as in this

case, necessarily requires an array of consent forms, specific storage and

custody provisions, stipulations on retention and return, notice and

reporting requirements, and the need for the trial court to extend its

jurisdiction and oversight over strangers to the case, possibly for some

unknown time after the entry of a final judgment, does little more than

create new burdens or merely shift existing burdens around, all the while

increasing the risk of improper dissemination of protected, confidential

20The process of discovery in litigation is to aid in the determination

of legal controversies between adverse parties. Seattle Times Co. v

Rhinehart, 467 U.S. 20, 34 (1984) ("Liberal discovery is provided for the

sole purpose of assisting in the preparation and trial, or the settlement,

of litigated disputes."). The purpose is not to expose parties' otherwise

nonpublic information or make it available for public inspection. Such

exposure might occur, and it might benefit the public or counsel in other

cases, but that is not its purpose. While attorneys representing parties

might find other uses for materials generated in discovery, Rule 26 itself

provides them no personal rights or privileges.

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information. Given that Rule 26 cautiously governs access to trade

secrets and other confidential information and has general limitations on

who may obtain information provided in discovery and what may be

obtained, I cannot "construe" or apply Rule 1(c) in a way that ultimately

cuts against the clear protections contemplated in that rule.

An order by a trial court that allows the "sharing" of trade secrets

or other protected confidential information -- even despite a lack of

language in the rule prohibiting such sharing -- is nonetheless

antithetical to the general process of discovery as set forth in Rule 26 and

the specific protections provided with respect to trade secrets and other

protected confidential information. I cannot uphold the trial court's order

in the respects that the writ requires; therefore, I must respectfully

dissent.

Wise, J., concurs.

In re: James M. Foor and Krystina Foor v. State Farm Fire and Casualty Company

Authorities cited

Opinion · public domain