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

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 v. State Farm Fire and Casualty Company) (Bullock Circuit Court: CV-25-900001) MENDHEIM, Justice. SC-2025-0918 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. 2 SC-2025-0918 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 3 SC-2025-0918 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-cv- 2025-900479.00 "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 4 SC-2025-0918 "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-cv- 01260-RDP "Walker v. State Farm Fire and Casualty Company Circuit Court of Autauga County, Alabama Case No. 04-cv- 2025-900165.00." 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 5 SC-2025-0918 "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 6 SC-2025-0918 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 SC-2025-0918 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 product- defect 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 8 SC-2025-0918 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 9 SC-2025-0918 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. 10 SC-2025-0918 ".... "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 11 SC-2025-0918 -- 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 non- sharing 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, 12 SC-2025-0918 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. 13 SC-2025-0918 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 14 SC-2025-0918 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 15 SC-2025-0918 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."). 3 "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 16 SC-2025-0918 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). 17 SC-2025-0918 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. ".... (c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or, 18 SC-2025-0918 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 19 SC-2025-0918 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. 20 SC-2025-0918 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. 21 SC-2025-0918 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 22 SC-2025-0918 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). 23 SC-2025-0918 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 24 SC-2025-0918 "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 Post- Public 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."). 25 SC-2025-0918 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.