# Hoog v. Dometic Corporation

> District Court, W.D. Oklahoma · September 29, 2023

URL: https://www.frixlaw.com/law-library/cases/10390438

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** September 29, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10390438

## How later opinions describe it (automated extraction)

- explaining the court may take judicial notice of publicly filed records from other courts concerning matters that bear directly upon the disposition of the case at hand

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

KEVIN W. HOOG and )
REBECCA HOOG, )
)
Plaintiffs, )
)
v. ) Case No. CIV-20-00272-JD
)
DOMETIC CORPORATION, )
a Delaware corporation, )
)
Defendant. )

ORDER
Before the Court is Plaintiffs’ First Amended Motion and Supporting Brief for
Order Compelling Dometic to Remove Confidentiality Designations on Certain
Documents Produced in Discovery (“Motion”) [Doc. No. 57].1 Defendant Dometic
Corporation (“Dometic”) filed a response in opposition [Doc. No. 60], and Plaintiffs filed
a reply [Doc. No. 61]. For the reasons stated below, the Court grants in part and denies in
part the Motion.
I. BACKGROUND
At the outset, the Court notes that this case follows significant discovery
production in two putative class actions—Papasan, et al. v. Dometic Corporation, Case
No. 16-cv-02117-HSG (N.D. Cal.) (“Papasan I”) and Papasan, et al. v. Dometic

1 The Court also reviewed Terrence Beard’s Amended Declaration [Doc. No. 58]
in support of the Motion; the documents at issue, which were submitted to the Court for
in camera review pursuant to the Court’s Order entered September 27, 2022 [Doc. No.
81]; and Dometic’s Notice of Supplemental Authority Concerning Buc Testing Materials
Subject to Plaintiffs’ Motions to Compel, ECF No. 57 and 87 [Doc. No. 129].
Corporation, Case No. 1:16-cv-22482-RNS (S.D. Fla.) (“Papasan II”)—both of which
were subject to stipulated confidentiality and protective orders and involved the same
lead Plaintiffs’ counsel, Terrence Beard. Prior to the instant case, Plaintiffs’ counsel did

not challenge any of Dometic’s confidentiality designations in either Papasan I or
Papasan II.2 Additionally, the Court notes that nothing about this Order impacts the
decisions made in other litigation involving Dometic, and that the Court views its
decision and analysis through the lens of the Protective Order [Doc. No. 42] in this case
and governing case law.

A. Plaintiffs’ Claims
In this action, Plaintiffs seek money damages following a fire on March 30, 2018,
which they allege was caused by a defective NDR 12923 gas absorption refrigerator (the
“Refrigerator”) manufactured by Dometic. See Second Am. Compl. [Doc. No. 27] at ¶ 1.
The Refrigerator was installed as original equipment in Plaintiffs’ 2007 Newmar Dutch

2 The Court exercises its discretion to take judicial notice of the publicly filed
records and judicial dockets in the consolidated class action and other related cases
against Dometic for purposes of this Motion. See United States v. Ahidley, 486 F.3d
1184, 1192 n.5 (10th Cir. 2007) (explaining the court may take judicial notice of publicly
filed records from other courts concerning matters that bear directly upon the disposition
of the case at hand). As an initial matter, the Court would note that Plaintiffs cannot
challenge rulings in another case through this case or attempt to undo prior or ongoing
litigation through this action. With that said, the Court has fully examined the
submissions and the showing made by Dometic and notes that the Court’s analysis and
conclusions on the confidentiality designations relate to this case only.

3 See Pls.’ Mot. to Compel [Doc. No 87 at 2 n.2], which indicates that since the
filing of Plaintiffs’ Second Amended Complaint and Dometic’s Answer [Doc. No. 37],
Dometic has stipulated that Plaintiffs’ refrigerator was a Dometic Model NDR 1292,
Serial Number 65100048, installed as original equipment in Plaintiffs’ motorhome or
RV.
Star 4320 Class A motorhome (the “RV”). Id. Plaintiffs purchased the RV from a private
party on or about October 26, 2011. Id. ¶ 38. Plaintiffs allege that between October 26,
2011 and March 30, 2018, they used the RV and Refrigerator with no issues. Id. ¶ 39.

Plaintiffs kept the RV—along with their other two vehicles—inside a custom
built 5,000 square foot shop on their property in Arcadia, Oklahoma. Id. ¶ 40. The shop
also included a fully equipped apartment with Plaintiffs’ personal collection of hand-
signed NASCAR memorabilia and their gun collection. Id.
On March 30, 2018, Plaintiffs left their property to meet friends for dinner around

8:00 p.m. Id. ¶ 41. Inside the shop was their RV, which Plaintiffs allege was plugged
into shore power, and the Refrigerator was turned on. Id. Around 10:30 p.m., Plaintiffs
received calls on their cell phones from neighbors and the fire department that the shop
was on fire. Id. Plaintiffs allege that the fire was eventually extinguished by the Edmond
Fire Department around 2:30 a.m. on March 31, 2018. Id. The fire destroyed the shop,

Plaintiffs’ vehicles, the RV, and the contents of the shop. See id. ¶¶ 40, 42.
Dometic initiated recalls of select models of its gas absorption refrigerators
through the National Highway Traffic Safety Administration (“NHTSA”) in 2006 and
2008. Id. ¶ 31. It is undisputed that Plaintiffs’ model Refrigerator was never recalled. See
[Doc. No. 107 ¶ 18; Doc. No. 121 ¶ 18]. Plaintiffs allege that the Model NDR 1292

refrigerators share common design defects with the recalled models and that “Dometic
has actual knowledge that these model refrigerators continue to fail and cause fires
because of the defects . . . .” Second Am. Compl. [Doc. No. 27] ¶ 34.
Plaintiffs contend that despite “Dometic’s actual knowledge of the real-world
performance of [its] product, Dometic never stopped selling and placing its dangerously
defective refrigerators into the stream of commerce,” nor paused production and sales to

modify the refrigerators “to operate safely.” Id. ¶ 30. As a result, Plaintiffs allege that
between 1997 and 2017, Dometic sold more than 3 million defective gas absorption
refrigerators in the United States. Id.
Following the Court’s Order [Doc. No. 36] granting in part and denying in part
Dometic’s Partial Motion to Dismiss [Doc. No. 29], Plaintiffs’ remaining claims in their

Second Amended Complaint include Count 1, strict liability/design defect; Count 2,
strict liability/failure to warn; Count 3, negligence; Count 4, negligence/post-sale duty to
warn; Count 5, negligence per se; Count 6, negligence/post-sale duty to conduct
adequate recall/retrofit; and Count 8, to the extent it alleges unfair trade practices under
the Oklahoma Consumer Protection Act.

B. Confidentiality Designations at Issue
Plaintiffs request that the Court order Dometic to remove the confidentiality
designations on five documents and provide Plaintiffs with clean copies of the documents
within five days of the Court’s ruling. The five documents at issue are: Dr. Elizabeth
Buc’s January 24, 2019 deposition transcript in Papasan II and four exhibits to Patrick

McConnell’s January 19, 2019 deposition in the same lawsuit, which includes two scripts
used by Dometic’s Refrigerator Retail Recall Line (Exhibit 18); an October 6, 2009
report to Dometic’s parent company’s board of directors regarding the 2006 and 2008
recalls (Exhibit 9); a compilation of incident files maintained by Dometic regarding fires
in their gas absorption refrigerators (Exhibit 14); and a November 2006 email string
between McConnell and Kenth Bengtsson, Carl Lindhagen, and Lars Johanssen of
Dometic’s affiliate companies in Sweden regarding Dr. Buc’s testing (Exhibit 19).

Motion at 4–6. Plaintiff asserts that Dometic has over-designated Dr. Buc’s deposition
and the other referenced documents as “confidential.”
After Plaintiffs filed their Motion, Dometic agreed to de-designate portions of Dr.
Buc’s deposition transcript and portions of Exhibit 14 to McConnell’s deposition. [Doc.
No. 60 at 6 n.2 and 11 n.5; Doc. No. 60-3]. Dometic contends that its remaining

confidentiality designations are appropriate, and that the documents at issue contain
proprietary, commercially sensitive information. Plaintiffs disagree.
C. Protective Order
Under the Protective Order in this case, “confidential information” is broadly
defined. [Doc. No. 42 ¶¶ 1.b. and 1.c.]. “[A]ny Supplying Party shall have the right to

designate as confidential any document or other information it produces or provides and
any testimony it gives in this Proceeding that it and its counsel believe in good faith
discloses a trade secret or other confidential research, development, or commercial
information contemplated under Rule 26(c) of the Federal Rules of Civil Procedure.” Id.
¶ 1.b. Any party to the proceeding “may also designate as confidential any information or

testimony supplied by a non-party if the party transmitted the information to the non-
party under an agreement or obligation that it would remain confidential.” Id.
The Protective Order also includes the following provision regarding challenges
to a confidential designation:
A party may, at any time, make a good-faith challenge to the propriety of a
Confidential Information designation. The objecting party shall first consult
with the designating party to attempt to resolve their differences. If the
parties are unable to reach an accord as to the proper designation of the
material, the objecting party may move the Court for a ruling that the
material shall not be so designated, subject to compliance with Federal
Rules of Civil Procedure and Local Court Rules on discovery motions,
including a certification in the motion that the parties have met and
conferred in good faith on the issue. If such a motion is made, the
designating party has the burden of establishing that the designation is
proper. If after the parties’ good faith-conference no motion is made, the
material will retain its original designation. Any documents or other
materials that have been designated as Confidential Information shall be
treated as Confidential Information until such time as the Court rules on
any objection.

Id. ¶ 6. Additionally, it includes a procedure for filing confidential material with the
Court under seal. See id. ¶ 5.
“Confidential Information may be further designated as ‘ATTORNEYS’ EYES
ONLY’ material.”4 Id. ¶ 4.a. Such designation, however, “should be used extremely
sparingly and is reserved for highly sensitive information that constitutes proprietary,
technical, or other unusually sensitive information that the producing party maintains as
confidential in the normal course of its operations.” Id. ¶ 4.b.
In response to Plaintiffs’ requests for production in this case, Dometic asserts that
it designated some of the documents confidential and/or attorneys’ eyes only pursuant to

4 “ATTORNEYS’ EYES ONLY” is defined under the Protective Order as
information or other materials that “the designating party believes in good faith are not
generally known to others and which the designating party (i) would not normally reveal
to third parties except in confidence or has undertaken with others to maintain in
confidence, or (ii) believes in good faith is sensitive and protected by a right of privacy
under federal law, state law, or any other applicable privilege or right related to
confidentiality or privacy that warrants review by attorneys only.” [Doc. No. 42 ¶ 4.b.].
the terms of the Protective Order and consistent with their confidential designations in
Papasan I and Papasan II. [Doc. No. 60 at 2]; see also [Papasan I, Doc. No. 52,
Stipulated Protective Order] and [Papasan II, Doc. No. 18, Stipulated Confidentiality

and Protective Order].
II. ANALYSIS
Here, Dometic, as the designating party, “has the burden of establishing that the
designation[s] [are] proper” under the Protective Order. [Doc. No. 42 at 10]. Under
Federal Rule of Civil Procedure 26(c)(1)(G), a “court may, for good cause, issue an order

to protect a party . . . [by] requiring that a trade secret or other confidential research,
development, or commercial information not be revealed or be revealed only in a
specified way.” Fed. R. Civ. P. 26(c)(1)(G). “As with most . . . discovery privileges
recognized by law, ‘there is no absolute privilege for trade secrets and similar
confidential information.’” Fed. Open Mkt. Comm. Fed. Rsrv. Sys. v. Merrill, 443 U.S.

340, 362 (1979) (quoting 8 C. Wright & A. Miller, Federal Practice & Procedure § 2043,
p. 300 (1970)). Additionally, courts do not give “trade secrets automatic and complete
immunity against disclosure,” but rather, they “weigh[] their claim to privacy against the
need for disclosure” on a case-by-case basis. Id.
Under Tenth Circuit law, a party seeking protection under Rule 26(c)(1) must

“‘first establish that the information sought is a trade secret [or other confidential
research, development, or commercial information] and then demonstrate that its
disclosure might be harmful.’” In re Cooper Tire & Rubber Co., 568 F.3d 1180, 1190
(10th Cir. 2009) (quoting Centurion Indus., Inc. v. Warren Steurer and Assocs., 665 F.2d
323, 325 (10th Cir. 1981)). “If the party makes such a showing, ‘the burden shifts to the
party seeking discovery to establish that the disclosure of trade secrets [or other
confidential and commercial information] is relevant and necessary to the action.’” Id.

(quoting Centurion, 665 F.2d at 325). In making this consideration, the Court should
balance the need for the information “against the claim of injury resulting from
disclosure.” Centurion, 665 F.2d at 325.
The trial court has “broad discretion . . . to decide . . . what degree of protection is
required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984). Trial courts retain this

broad discretion because they are “in the best position to weigh fairly the competing
needs and interests of parties affected by discovery.” Id. “The unique character of the
discovery process requires that the trial court have substantial latitude to fashion
protective orders [and decide what degree of protection is required].” See id.
“Although there is no federal discovery privilege for trade secrets, state law

governs privileges in civil diversity cases.” McKellips v. Kumho Tire Co., 305 F.R.D.
655, 662 (D. Kan. 2015)5 (internal footnote omitted) (citing Centurion, 665 F.2d 325). As
this is a diversity case and the Court sits in Oklahoma, the Court looks to Oklahoma law
to determine whether any privilege applies.

5 Although federal district courts do not make binding precedent, because
discovery issues are typically decided at the trial court level, the Court may look to other
district court orders as persuasive. Cf. Camreta v. Greene, 563 U.S. 692, 709 n.7 (2020)
(“A decision of a federal district court judge is not binding precedent in either a different
judicial district, the same judicial district, or even upon the same judge in a different
case.” (internal quotation marks and citation omitted)).
Oklahoma recognizes a trade secret privilege. See Okla. Stat. tit. 12, § 2508. “A
person has a privilege . . . to refuse to disclose and to prevent other persons from
disclosing a trade secret owned by the person, if the allowance of the privilege will not

tend to conceal fraud or otherwise work injustice.” Id. A “trade secret” is defined as:
[I]nformation, including a formula, pattern, compilation, program, device,
method, technique or process, that:

a. derives independent economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by proper means
by, other persons who can obtain economic value from its disclosure or
use, and

b. is the subject of efforts that are reasonable under the circumstances to
maintain its secrecy.

Okla. Stat. tit. 78, § 86.6 On its face, Rule 26(c)(1)(G) goes beyond trade secrets to
provide protection for “other confidential research, development, or commercial
information.” See Fed. R. Civ. P. 26(c)(1)(G).
A. Dr. Buc’s January 24, 2019 Deposition Testimony
Plaintiffs challenge Dometic’s confidentiality designations from select portions of
Dr. Buc’s 2019 deposition transcript taken in Papasan II. Dr. Buc was an outside

6 The Oklahoma Supreme Court has adopted six factors from the Restatement of
Torts, § 757, to help determine whether information is a trade secret: (1) the extent to
which the information is known outside of the business; (2) the extent to which it is
known by employees and others involved in the business; (3) the extent of measures
taken by the company to guard the secrecy of the information; (4) the value of the
information to the company and to the company’s competitors; (5) the amount of effort or
money expended by the company in developing the information; and (6) the ease or
difficulty with which the information could be properly acquired or duplicated by others.
Amoco Prod. Co. v. Lindley, 609 P.2d 733, 743 (Okla. 1980) (citing Restatement (First)
of Torts § 757 cmt. b).
consultant hired by Dometic’s attorneys in 2005 to conduct a series of tests on certain
models of Dometic gas absorption refrigerators. See McConnell’s Decl.7 [Doc. No. 60-1
¶ 3]; see also Dr. Buc’s Decl. [Doc. No. 58-2]. Dometic has submitted Mr. McConnell’s

Declaration as evidentiary support for its designations.
According to McConnell, Dr. Buc “was hired specifically because of lawsuits and
other claims alleging fires involving Dometic-branded refrigerators, and her testing was
solicited solely for purposes of existing and anticipated litigation.” [Doc. No. 60-1 ¶ 3].
Plaintiffs assert that “Dometic has designated large swaths of [Dr. Buc’s

deposition transcript] confidential, notwithstanding the fact” that her results were
“publicly disclosed by Dometic” to the NHTSA and used as the basis for the 2006 and
2008 recalls. Motion at 5. Dometic and Mr. McConnell assert that although “the
existence of her testing was disclosed to the [NHTSA] in connection with” the recalls,
“Dometic has at all times maintained privilege over the underlying testing documents

created by Dr. Buc and relevant attorney-client correspondence related thereto.” [Doc.
No. 60-1 ¶ 3]. They further assert that Dometic has never produced, nor been ordered to
produce, Dr. Buc’s underlying testing materials in any litigation. See id.; see also [Doc.
No. 58-2 ¶¶ 2–6].
According to McConnell, “Dometic invested substantial time, money and effort

into developing the protocol for the aforementioned testing and conducting the testing

7 According to his Declaration, Mr. McConnell was responsible for product safety
for Dometic-branded gas absorption refrigerators sold in the United States from the early
2000s until his retirement in 2018. [Doc. No. 60-1 ¶ 1]. Since his retirement, he has
served as a consultant for Dometic. See id.
with the assistance of Dr. Buc.” [Doc. No. 60-1 ¶ 5]. He further asserts that the “testing
cannot be readily duplicated by Dometic’s competitors,” and that “public production” of
the testing details would “force Dometic to disclose to its competitors the results of its

proprietary investigation and effort and could provide the foundation for [its] competitors
to duplicate the testing,” thereby allowing its competitors to “reap the underserved [sic]
benefit of Dometic’s time, effort, and insight derived from its work with Dr. Buc.” See id.
The Court has reviewed Dr. Buc’s deposition transcript, submitted in camera,8 and
concludes that there are highlighted portions that contain confidential information “that

[if disclosed] would likely jeopardize [Dometic’s] competitive business interests, thereby
justifying [those] current designations.” See Video Gaming Techs., Inc. v. Castle Hill
Studios LLC, Case No. 17-CV-454-GKF-JFJ, 2019 WL 2514705, at *4 (N.D. Okla. June
18, 2019). Those portions, for the most part, relate to the scope and focus of Dr. Buc’s
and Dometic’s investigation and include details of Dr. Buc’s testing, methodology, and

analysis. A competitor could infer from those portions, if disclosed, which components of
the units Dr. Buc was testing at Dometic’s insistence and how the results of her testing
drove additional testing at Dometic’s urging. In addition to the disclosure of proprietary
information to Dometic’s competitors, other highlighted portions are covered by the

8 The Court notes that the highlighted portions of Dr. Buc’s deposition transcript
submitted in camera do not fully match the noted designations of the Dr. Buc deposition
in Papasan II. Compare [Doc. No. 60-2]. To the extent Dometic expanded or increased
the designations in its in-camera submission, the Court declines to review additional
designations presented for the first time in the in-camera submission, submitted on
September 28, 2022. See also [Doc. No. 60 at 6 n.2 and 11 n.5]. In any event, it appears
that was not Dometic’s intention and that Dometic’s intention is to only designate those
portions listed in Doc. No. 60-2. See, e.g., Doc. No. 88-2 at 24.
attorney-client or work product privileges or as other confidential commercial
information. However, there are some designations that do not appear to be narrowly
tailored and necessary to protect Dometic’s competitive business interests. Using the

designations noted in [Doc. No. 60-2] as the guide, the Court’s conclusions are as follows
for purposes of this action:
5:21–6:9 This is not highlighted on the in-camera
copy, and it should not be designated
confidential for purposes of this action.
25:18–29:20 This meets the parameters described by
Dometic, the governing Protective Order,
and applicable law and is supported by
McConnell’s Declaration. It will remain
designated confidential for purposes of
this action.
32:17–33:14 This meets the parameters described by
Dometic, the governing Protective Order,
and applicable law and is supported by
McConnell’s Declaration. It will remain
designated confidential for purposes of
this action.
54:6–56:5 This portion should not be marked
confidential for purposes of this action.
This portion includes questioning and
testimony about a publicly filed
declaration Dr. Buc executed on February
23, 2016, and a privilege log attached to
that declaration, in Bowman, et al. v.
Dometic Corporation, Case No. 4:15-cv-
00089-SMR-HCA (S.D. Iowa) [Doc. No.
51-5], both of which have also been filed
publicly in this action. See [Doc. Nos. 58-
2 and 88-8] in the instant action.
56:6–58:13 This meets the parameters described by
Dometic, the governing Protective Order,
and applicable law and is supported by
McConnell’s Declaration. It will remain
designated confidential for purposes of
this action.
58:14–59:25 This portion goes into the types of testing
Dr. Buc performed; it meets the
parameters described by Dometic, the
governing Protective Order, and
applicable law and is supported by
McConnell’s Declaration. It will remain
confidential for purposes of this action.
60:1–62:14 This portion should not be marked
confidential for purposes of this action.
The specific questioning relates to Dr.
Buc’s publicly filed declaration and
privilege log; it does not delve into Dr.
Buc’s testing or any specific materials in
her file, or even the specific contents of
the privilege log. Dometic has not met its
burden with respect to this designation.
62:15–66:6 This portion delves into Dr. Buc’s
investigation, testing, and the protocols
she followed; thus, it should remain
confidential for purposes of this action.
69:9–70:9 This is not highlighted on the in-camera
copy, and it should not be designated
confidential for purposes of this action.
74:18–81:1 This portion probes Dr. Buc’s
investigation, testing, and the protocols
she followed; thus, it should remain
confidential for purposes of this action.
81:2–82:22 This portion meets the parameters
described in the governing Protective
Order as it relates to attorneys’ eyes-only
material, and it will remain confidential
for purposes of this action.
82:23–83:4 This portion does not need to be marked
confidential as it is simply Plaintiffs’
counsel asking to take a break, and the
videographer noting the time they went
off record and came back on.
83:5–89:13 This portion is a colloquy between
counsel and discusses an attorneys’ eyes-
only exhibit. There is also additional
inquiry of Dr. Buc regarding her testing
and investigation. This portion will remain
confidential for purposes of this action.
100:6–13 This portion relates to testing and will
remain confidential for purposes of this
action.
105:5–111:15 This portion will remain confidential for
purposes of this action.
121:5–122:19 This is not highlighted on the in-camera
copy, and the Court presumes it was de-
designated by Dometic [see Doc. No. 60
at 6 n.2]. Thus, it will not be designated
confidential for purposes of this action.
124:8–132:8 This portion goes into Dr. Buc’s testing
and investigation; thus, it should remain
confidential for purposes of this action.
195:10–200:1 This portion goes into Dr. Buc’s testing,
investigation, and protocols she followed;
thus, it should remain confidential for
purposes of this action.

Although there exists a common law right to inspect and copy judicial records,
such “right is not absolute,” and “[a]ll courts have supervisory powers over their own
records and files.” United States v. Hickey, 767 F.2d 705, 708 (10th Cir. 1985) (citing
Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978)). Courts have denied public
access where court files could “become a vehicle for improper purposes” or could result
in the disclosure “of business information that might harm a litigant’s competitive
standing.” Nixon, 435 U.S. at 598 (citations omitted). Ultimately, the decision on the
right of access is committed “to the sound discretion of the trial court, a discretion to be
exercised in light of the relevant facts and circumstances of the particular case.” Id. at
599.
In exercising its discretion here, the Court has considered “the relevant facts and
circumstances of the particular case and weigh[ed] the relative interests of the parties.”
Hickey, 767 F.2d at 708. Plaintiffs already have Dr. Buc’s deposition transcript, and the
Court can decide the motion to compel at issue [Doc. No. 87] because the Court has
reviewed Dr. Buc’s deposition transcript in camera. Dometic “also has an interest in
maintaining the confidentiality of business information that might harm its competitive

standing if revealed to competitors.” Martinez v. Cont’l Tire the Americas, LLC, No.
1:17-cv-00922-KWR-JFR, 2023 WL 2914796, at *2 (D.N.M. Apr. 12, 2023). Dometic
has taken reasonable steps to keep Dr. Buc’s deposition testimony confidential from its
competitors, and there is no evidence that continuing to keep the selected portions
identified above as confidential would “conceal fraud or otherwise work an injustice.”

See id.; see also [Doc. No. 60-1].
Additionally, imposing limitations on the disclosure of confidential information is
appropriate where disclosure would allow competitors to duplicate the methods and
procedures that the disclosing party “expended significant time and financial resources to
develop.” Ortez v. United Parcel Serv., Inc., No. 1:17-cv-1202-CMA, SKC, 2018 WL

11237901, at *3 (D. Colo. Oct. 29, 2018). Dometic has presented unchallenged evidence
in the form of Mr. McConnell’s signed declaration that Dometic invested substantial
time, money, and effort in developing the testing protocols with Dr. Buc’s assistance, and
that if the confidential portions of Dr. Buc’s deposition transcript are disclosed to the
public, Dometic’s competitors could reap the benefits of “Dometic’s time, effort and

insight derived from its work with Dr. Buc” and thereby duplicate the testing. [Doc. No.
60-1 ¶ 5].
For example, Plaintiffs assert in their Motion that Dometic’s competitor, Norcold,
makes essentially the same RV gas absorption refrigerator as Dometic, “containing the
same design defect, resulting in thousands of fires due to leaking cooling unit boiler
tubes.” Motion at 7. If Norcold had the benefit of those portions of Dr. Buc’s sealed
transcript, Norcold could possibly use that information to help duplicate testing at

Dometic’s expense. See Luttrell v. Brannon, Case No. 17-2137-HLT-GEB, 2018 WL
4469276, at *7 (D. Kan. Sept. 18, 2018) (recognizing that disclosure would be harmful to
the designating party’s interest where it had “spent millions of dollars and a considerable
amount of time, effort, and resources in developing, manufacturing, and marketing its
products and procedures to give it a competitive advantage over its many competitors”);

Melnick v. Tamko Bldg. Prods. LLC, Case No. 19-CV-2630-JAR-BGS, 2023 WL
5574188, at *3 (D. Kan. Aug. 29, 2023) (sealing documents and third-party testing
records that contain details regarding the manufacturing process of the defendant’s
product and product specifications that may risk competitive harm). The Court finds that
Dometic has met its burden to show that public disclosure of those portions of Dr. Buc’s

testimony that the Court outlined above could be averse to its competitive interests or
should otherwise be designated as confidential.
B. McConnell Exhibits
Plaintiffs also challenge Dometic’s confidentiality designations regarding several
exhibits to Mr. McConnell’s deposition in Papasan II.
1) Exhibit 18—Script used by Dometic’s Refrigerator Retail Recall Line (Dometic-
Hoog 008214–008222)9

The first exhibit includes “an internal script and other internal information that
Dometic prepared for its employees to guide discussions about the recall.” [Doc. No. 60-
1 ¶ 9]. Although the scripts are dated October 2018 or earlier, they “continue[] to be used
to this day,” and they “contain[] proprietary information on how Dometic responds to and
handles inquiries from consumers regarding the recalls” and issues with the refrigerators.
See id. Dometic and McConnell also assert that the company “invested time, money and
resources into developing this resource in order to properly and effectively guide its
employees on how to handle consumer inquiries.” See id.
The Court agrees with Dometic that public disclosure of the scripts could reveal

Dometic’s internal proprietary strategies and would allow any competitor to duplicate
and repurpose the scripts as its own. Thus, this document constitutes the standard type of
proprietary commercial information that a party is permitted to maintain as confidential.
See, e.g., Davis v. Soc. Serv. Coordinators, Inc., No. 1:10-cv-02372-LJO-SKO, 2012 WL
2376217, at *2 (E.D. Cal. June 22, 2012) (finding good cause to seal “scripts for

employees to follow when interacting with customers” where those scripts, if
disseminated publicly, would allow the defendant’s competitors to possibly “reap the
benefit of the internal operating procedures and information without having to incur the

9 This exhibit includes blank or blue pages with no information at all [Dometic-
Hoog 008214, 008216–008218]; thus, they are not properly designated confidential in the
narrowest sense. However, it does occur to the Court that this may have been how the
exhibit was presented in the deposition. Thus, the Court has considered the exhibit as a
whole.
costs associated with developing the scripts and internal procedures”). Thus, Exhibit 18
will remain designated confidential for purposes of this action.
2) Exhibit 9—October 6, 2009 report to Dometic’s parent company’s board of
directors (Dometic-Hoog 008461–008469)10

This exhibit “is an internal report to the board of directors of Dometic’s parent
company, which discusses highly proprietary internal details related to Dometic’s 2006
and 2008 recalls.” [Doc. No. 60-1 ¶ 7]. Included in the report are detailed tables, charts,
and graphs that disclose internal costs incurred and an analysis of anticipated costs “in
connection with the ongoing recalls”; “how Dometic allocated those costs to various
aspects of the recall[s]”; “the financial reserve adequacy for the recalls”; and “an internal
breakdown and analysis of various insurance claims made on Dometic-branded

refrigerators and the anticipated costs associated with those claims.” See id. Although the
report is historical11 (dated October 6, 2009), it does include proprietary information.
Thus, the Court agrees that public disclosure of this information to Dometic’s
competitors would disclose how Dometic analyzes and allocates internal costs and could
potentially reveal internal processes for analyzing insurance claims and costs, thereby

jeopardizing Dometic’s competitive business interests. See, e.g., Baker v. SeaWorld Ent.,

10 This exhibit also includes a blank page with no information [Dometic-Hoog
008461]; thus, it is not properly designated confidential in the narrowest sense. However,
it could be this was how it was presented in the deposition and thus the Court will leave
that aspect alone.

11 Although Plaintiffs make a conclusory challenge based on the McConnell
exhibits and the Buc deposition being “historical” [Doc. No. 57 at 7; Doc. No. 61 at 2],
Plaintiffs do not cite to any legal authority that would allow the Court to reject the
proprietariness of these documents or exhibits based on history alone.
Inc., Case No.: 14cv2129-MMA (AGS), 2017 WL 5029612, at *5–6 (S.D. Cal. Nov. 3,
2017) (overruling the plaintiffs’ objections to the defendants’ confidentiality designations
of internal business materials, including an executive’s notes for a board of directors’

presentation, a draft of the board of directors’ meeting presentation slides, a confidential
consumer report, and communications regarding pricing and marketing strategies). Thus,
Exhibit 9 will remain designated confidential for purposes of this action.
3) Exhibit 14—Compilation of Incident Files by Dometic Regarding Fires in their
Gas Absorption Refrigerators (Dometic-Hoog 008697–008762)

This exhibit contains a compilation of different product incident reports, internal
Dometic reports, handwritten notes, and databases. [Doc. No. 60-1 ¶ 8]. Dometic
originally designated 66 pages as confidential, but upon further review limited the
confidentiality designations to 11 pages. [Doc. No. 60 at 11 n.5]. What remains as
designated confidential is a specific internal complaint form (Dometic-Hoog 008697–
008698) used by Dometic, which if disclosed would “reveal[] to Dometic’s competitors
how Dometic has chosen to document and record alleged incidents on its products.”
[Doc. No. 60-1 ¶ 8]. Dometic created this specific form, the company holds it as

proprietary, and such form is not accessible to the public or its competitors. See id.
Therefore, it is properly marked confidential based on McConnell’s declaration and the
Court’s review.
The next page of that exhibit (Dometic-Hoog 008699) was a “snapshot” pulled
from Dometic’s internal customer database and reveals “how Dometic documents and

records its customer data as well as specific information about . . . Dometic’s customers.”
See id. McConnell’s declaration affirms that the customer database information is
internal, meaning not accessible to the public or Dometic’s customers. Thus, it will
remain marked confidential for purposes of this action.

The handwritten notes (Dometic-Hoog 008700, 008703, and 008705) and bill of
lading (Dometic-Hoog 008706) present a closer call because they do not appear to be on
any specific Dometic internal form or database. However, they do appear to the Court to
relate to the product incident form and internal database marked confidential in the same
exhibit, such that disclosure of the handwritten notes and bill of lading would necessarily

reveal the information contained therein, or the thought process of what information
Dometic takes down from the consumers. Additionally, they relate to other customers
that are not a part of this lawsuit. As such, the handwritten notes and bill of lading are
appropriately marked confidential.
Also included are Return Goods Authorization forms (Dometic-Hoog 008704 and

008707), which show Dometic’s internal processes for returned goods and the factors
Dometic considers in authorizing returns. [Doc. No. 60-1 ¶ 8]. Thus, it is appropriately
marked confidential based on McConnell’s declaration and the Court’s review.
The last two pages of Exhibit 14 (Dometic-Hoog 008761–008762) appear to be a
printout from a website with some handwritten notes at the top and a document titled,

“Metadata.” At first blush, the Court does not see how these documents relate to the rest
of the exhibit or the description from McConnell in his declaration. However, there is a
reference to “template” at the bottom of the website, and it does occur to the Court that
this could be from an internal website within Dometic.12 There is also a reference to
“Page 2 of 2” and “Attachment #2”; thus, the Court assumes this document is connected
to other documents within the exhibit.

The Court concludes that Exhibit 14 is a proprietary business record, and that
Dometic has a strong interest in maintaining its confidentiality. Dometic has limited its
redactions to only 11 pages; thus, the designations appear to be narrowly tailored and
necessary to protect Dometic’s competitive business interests.
4) Exhibit 19—McConnell’s Internal Emails with Dometic’s affiliate companies in
Sweden regarding Dr. Buc’s testing (Dometic-Hoog 008786–008791)

This exhibit includes internal emails about Dr. Buc’s testing. Specifically, the
emails discuss sample size, specific tests performed and the detailed results of those tests,
the parameters chosen by Dometic and Dr. Buc, and the materials used by Dr. Buc in her
testing. [Doc. No. 60-1 ¶ 10]. The emails appear to contain more details about Dr. Buc’s
testing than the confidential portions of her deposition transcript noted above. For the
same reasons discussed above, the Court finds good cause for maintaining the
confidentiality designations in Exhibit 19.

III. CONCLUSION
Based on the Court’s analysis above, the Court GRANTS IN PART and DENIES
IN PART Plaintiffs’ First Amended Motion and Supporting Brief for Order Compelling
Dometic to Remove Confidentiality Designations on Certain Documents Produced in

12 The Court was not able to publicly access the webpage using the URL on the
page.
Discovery [Doc. No. 57]. Accordingly, the Court directs Dometic to remove the
confidentiality designations only on those specific documents identified in this Order and
to provide Plaintiffs with copies of the de-designated documents within five business
days of this Order.

IT IS SO ORDERED this 29th day of September 2023.
ei W. DISHMAN
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10390438. Public record. Not legal advice.