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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Flynn v. E.I. duPont de Nemours (9/17/99) sp-5177

Flynn v. E.I. duPont de Nemours (9/17/99) sp-5177

Notice:  This opinion is subject to correction before publication in 
the Pacific Reporter.  Readers are requested to bring errors to the 
attention of the Clerk of the Appellate Courts, 303 K Street, 
Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878.



	THE SUPREME COURT OF THE STATE OF ALASKA
	


PAUL CHARLES FLYNN, ALEXIE	)
PAUL FLYNN, natural father 	)	Supreme Court No. S-8551
of Paul Charles Flynn, and	)
MAGGIE FLYNN, natural mother	)	Superior Court No.
of Paul Charles Flynn,		)	4BE-91-170 CI
)
   Appellants,		)
)	O P I N I O N
v.					)
)	[No. 5177 - September 17, 1999]
E. I. du PONT de NEMOURS AND	)
COMPANY, and REMINGTON ARMS	)
COMPANY, INC.,				)
)
   Appellees.		)
______________________________)



Appeal from the Superior Court of the State of 
Alaska, Fourth Judicial District, Bethel,
	Dale O. Curda, Judge.


Appearances:  Phillip Paul Weidner, Weidner & 
Associates, Inc., Anchorage, for Appellants. 
 John M. Conway, Atkinson, Conway & Gagnon, 
Anchorage, Dale G. Wills and James P. Dorr, 
Wildman, Harrold, Allen & Dixon, Chicago, 
Illinois, and Karin S. Schwartz, Debevoise & 
Plimpton, New York, New York, for Appellees. 
 


Before: Matthews, Chief Justice, Eastaugh, 
Fabe, Bryner, and Carpeneti, Justices.  


EASTAUGH, Justice.



1. INTRODUCTION
After settling his products liability claim, Paul Flynn 
moved for modification of a protective order requiring him to 
return all documents designated confidential by the defendant 
manufacturer.  Flynn had stipulated to entry of the order.  The 
court denied his motion and Flynn appeals.  Because Flynn has not 
demonstrated adequate justification for relief from the order to 
which he had agreed, we affirm.  
2. FACTS AND PROCEEDINGS
Paul Flynn and his parents (Flynn) sued E.I. du Pont de 
Nemours and Company and its subsidiary, Remington Arms Company, 
(collectively du Pont) for personal injuries allegedly caused by 
the accidental discharge of a Remington Model 552 rifle.  During 
litigation, du Pont required Flynn to stipulate to entry of a 
protective order before it produced copies of thousands of 
documents Flynn had sought through discovery.  The protective order 
required Flynn, upon resolution of the dispute, to return all 
documents Remington designated confidential.  In July 1993 Flynn's 
attorney signed and returned the stipulation, thus agreeing to 
entry of the order; but by letter to du Pont's attorney, Flynn's 
counsel also stated that he reserved the right to seek later 
modification.

Four years later, after settling the personal injury 
claim, Flynn sought modification of the order.   Flynn's attorney, 
Phillip Paul Weidner, stated in a supporting affidavit that he had 
agreed to the order on an "emergency, temporary basis"in response 
to du Pont's insistence, but that he wished to retain the documents 
for "professional and educational purposes." Du Pont opposed 
modification.  The court denied Flynn's motion, as well as his 
motion for reconsideration.  It determined that Flynn had failed to 
demonstrate that modification was warranted.  Flynn appeals.
3. DISCUSSION
1. Standard of Review
Although requests for modification of discovery orders 
are generally reviewed for abuse of discretion,  this case turns on 
two unresolved questions of law.  We review these questions -- the 
appropriate legal standard governing modification of discovery 
orders, and the proper placement of the burden of proof -- de 
novo.   In doing so, we will adopt the rule of law that is most 
persuasive in light of precedent, reason, and policy.    
2. Burden of Proof

The superior court required Flynn to demonstrate that 
modification was warranted because he had voluntarily stipulated to 
the protective order.  Flynn argues that he should not have borne 
the burden of proof.  We disagree.
Jochims v. Isuzu Motors, Ltd.  is directly relevant.  The 
plaintiff there sought to modify a stipulated protective order.  
 The district court rejected his contention that it was the 
defendant's burden to "demonstrate the need for maintaining the 
existing protective order."  It noted that there is general 
unanimity among courts that a party to a stipulated order seeking 
to modify that order bears the burden of demonstrating "particular 
good cause"in order to succeed.   The court held:
The courts' rationale for this standard is 
that a party which in good faith negotiates a 
stipulated protective order and then proceeds 
to produce documents pursuant to that 
protective order is entitled to the benefit of 
its bargain; namely, to rely upon the terms of 
the stipulated protective order.[ ] 
 

We agree with this reasoning, and conclude that the superior court 
did not err in placing the burden of proof on Flynn.
3. Request for Modification of Stipulated Order
A stipulated protective order is founded on an agreement 
between parties.  We will not disturb such an agreement absent 
justification.  We find no such justification here.
Flynn has advanced two principal rationales for 
modification.  First, Flynn's counsel asserts that he wishes to 
retain the documents for his own benefit in order to maintain the 
integrity of his files and to study them for purposes of future 
litigation.  Second, he asserts that he wishes to retain the 
documents for purposes of public access because they may be 
destroyed under du Pont's document destruction policy.  He also 
claims that the interest in public access to these documents 
outweighs any confidentiality concerns du Pont may have because the 
"blanket"protective order he signed covers a significant number of 
documents which contain neither trade secrets nor privileged 
information.
Du Pont argues that retention of the documents for the 
sole benefit of Flynn's attorney cannot justify rescission of the 
parties' knowing, voluntary, court-ratified agreement.  Because 
Flynn's attorney currently has no pending claims against du Pont, 
du Pont contends that any claim that the documents will be useful 
to him in future litigation is purely speculative. 

Du Pont also asserts that modification is not warranted 
by the possibility the documents might be destroyed.  It asserts 
that Flynn's evidence of du Pont's document destruction policy is 
outdated and inaccurate.  At oral argument before us, counsel for 
du Pont represented that the documents will be available to future 
litigants as long as there is an ongoing need for them in 
litigation and assured us that "there is no threat to the existence 
of these documents." We accept those representations as the 
guarantee of du Pont and its counsel that the documents will remain 
available and will not simply be destroyed upon the conclusion of 
Flynn's appeal in this case.  
We recognize the significant policy concerns underlying 
Flynn's attempt to retain the documents to maintain their 
availability to future litigants in the event of their destruction 
by du Pont.  Nonetheless, having agreed to and benefitted from the 
protective order, Flynn cannot obtain modification of the order for 
solely self-interested reasons or speculative public policy 
concerns.

Our decision here is informed by the opinions of federal 
courts considering this issue.  Some federal courts have permitted 
modification of protective orders when the interests of third 
parties or the public outweigh the protected party's interest in 
maintaining secrecy.   But Flynn has cited no authority supporting 
modification under the circumstances found here.  The key cases 
allowing modification involve relief sought by or for the benefit 
of third parties.   They support modification for general public 
policy reasons, not for the benefit of an original party or his 
attorney.  Flynn's request exceeds the boundaries staked out by 
those courts that freely allow modification.  The superior court 
correctly concluded that Flynn had offered no reason justifying 
relief from the protective order. 
4. Duress

Flynn also argues that the agreement should be voided 
because he entered into it under duress.  To prevail on a claim of 
duress, Flynn must establish that: (1) he involuntarily accepted du 
Pont's terms; (2) the circumstances permitted no alternative; and 
(3) those circumstances were the result of coercive acts by du 
Pont.   Flynn has failed to demonstrate that he lacked viable 
alternatives to accepting du Pont's terms.   He could have tried 
to negotiate different terms or challenged du Pont's terms in the 
superior court.  If necessary, he could have sought to continue the 
scheduled discovery to give the court time to resolve this dispute. 
 Therefore, we find no basis for his claim of duress.
E.	Letter Reserving Right to Seek Modification
The letter of Flynn's counsel accompanying the 
stipulation and purporting to reserve the right to seek 
modification of the order does not help either his claim of duress 
or his request for modification.  It stated: 
As we discussed in our conversation, and 
pursuant to our understanding reached in same, 
 I am signing this stipulation so that the 
materials you have been holding pursuant to 
our previous discovery requests, and so that 
the materials we anticipate receiving copies 
of in our upcoming discovery inspection . . . 
during the week of July 19, 1993 may be 
provided by your clients, with the specific 
understanding that I am reserving my right to 
approach the court to modify any of the terms 
and conditions of same.  That is, I maintain 
that certain recitations and conditions in 
said order are not well taken and warranted, 
however, I am agreeing to sign same at this 
juncture to avoid further delay in discovery, 
but I will be approaching the court to modify 
same, on the grounds the order sought is over 
broad and not justified.

This letter permits findings that Flynn's counsel 
believed himself to be acting under pressure from du Pont, that he 
considered the order overbroad, and that he communicated his 
dissatisfaction to du Pont.  But counsel's affidavit accomplishes 
the same thing.  A mere subjective perception of urgency -- or mere 
dissatisfaction with the terms of an agreement -- does not suffice 
to establish a claim of duress voiding that agreement.

Nor do the recitations in this letter justify 
modification of the agreement.  By its own terms, the letter has no 
substantive effect.  It does not enlarge Flynn's preexisting 
rights.  It simply reserves his right to seek modification; he has 
now exercised that right.  Counsel's statement that he believed 
certain provisions in the order to be unwarranted does not affect 
our assessment of the merits of his motion.  And it does not affect 
Flynn's obligations under the agreement his counsel signed.
4. CONCLUSION
We AFFIRM the superior court's denial of Flynn's motion.
 	Although it appears that the real beneficiary of 
modification would be Flynn's attorney, not Flynn, we attribute the 
arguments for modification to Flynn because Paul Flynn was the lead 
party seeking modification below and he is the lead appellant. 
 	We generally review discovery orders for abuse of 
discretion.  See Jones v. Jennings, 788 P.2d 732, 735 (Alaska 
1990).  Federal courts also apply this standard to requests for 
modification.  See Beckman Indus., Inc. v. International Ins. Co., 
966 F.2d 470, 472 (9th Cir. 1992).
 	See Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
 	See id.
 	145 F.R.D. 499 (S.D. Iowa 1992).  This case is sometimes 
referred to as "Jochims I"to distinguish it from two other 
similarly titled cases.  See Jochims v. Isuzu Motors Ltd., 148 
F.R.D. 624 (S.D. Iowa 1993) (Jochims II), modified by Jochims v. 
Isuzu Motors Ltd., 151 F.R.D. 338 (S.D. Iowa 1993) (Jochims III).
 	See Jochims I, 145 F.R.D. at 500-01.
 	Id. at 501.
 	Id. at 501.  In contrast, courts disagree about the 
proper placement of the burden of proof in requests for 
modification initiated by third party intervenors.  See 8 Charles 
Alan Wright et al., Federal Practice and Procedure  2044.1, at 
574-84 (2d ed. 1994) (cataloging a range of approaches towards 
modification from permissive to strict).  Compare Wilk v. American 
Med. Ass'n, 635 F.2d 1295, 1299 (7th Cir. 1980) (allowing 
permissive modification), with Martindell v. International Tel. & 
Tel. Corp., 594 F.2d 291, 296 (2d Cir. 1979) (imposing strict 
limitations on modification). 
 	Jochims I, 145 F.R.D. at 501-02 (citations omitted).
 	As du Pont observes, we have recognized spoliation of 
evidence as a tort in Alaska.  See Hazen v. Municipality of 
Anchorage, 718 P.2d 456, 463-64 (Alaska 1986).
 	See, e.g., Beckman Indus., Inc. v. International Ins. 
Co., 966 F.2d 470, 475-76 (9th Cir. 1992); Wilk, 635 F.2d at 1299; 
Kraszewski v. State Farm Gen. Ins. Co., 139 F.R.D. 156, 159-60 
(N.D. Cal. 1991).
 	See, e.g., Beckman, 966 F.2d at 475 (involving third 
party intervenors seeking modification); Kraszewski, 139 F.R.D. at 
158-60 (involving modification sought by class counsel to benefit 
plaintiffs in another pending suit).
 	See Helstrom v. North Slope Borough, 797 P.2d 1192, 1197 
(Alaska 1990).
 	According to du Pont, it conditioned copying, but not 
inspection, of the documents on a stipulated protected order. 
According to Flynn, du Pont also conditioned inspection of the 
documents on signing the order.

	-9-	5177