Behind nearly every successful crashworthiness recovery in modern American product liability law sits an unsung procedural device: the sharing protective order. It is the legal mechanism that allows plaintiffs’ lawyers to do something defendants spend enormous resources preventing—talk to each other about what manufacturers have hidden. The cases that pulled the GM ignition switch fraud into the open, that uncovered the Firestone tread separation epidemic, that exposed Ford Pinto fuel system economics, and that have driven recall after recall, were possible only because previous plaintiffs’ lawyers were able to share protected documents with the lawyers who came next.
Cronauer Law is a member of the Attorneys Information Exchange Group (AIEG). One of the conditions of AIEG membership is the affirmative commitment never to voluntarily agree to a non-sharing protective order. Our crashworthiness clients benefit from that commitment in two directions: the sharing orders we secure in our cases supply the next generation of plaintiffs with proof, and the orders our colleagues secured in earlier cases give our clients access to documents the manufacturers have already been compelled to produce.
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Every federal court and every state court has some form of rule allowing a party to seek a protective order to shield genuinely confidential trade-secret material from public disclosure during litigation. See, for example, Fed. R. Civ. P. 26(c). The text of those rules is unobjectionable; the practice that has grown up around them is not.
The standard defense playbook is to designate enormous swaths of internal corporate material—engineering memoranda, test data, design history files, deposition transcripts—as confidential under a stipulated protective order, then to bind the plaintiff’s counsel from sharing those materials with anyone outside the case. The result is structural: each new plaintiff must rediscover, in expensive discovery, what the manufacturer’s lawyers already know other plaintiffs’ lawyers found. The economic incentive to settle quietly, before the documents are public, is intentional and powerful.
A sharing protective order does two things at once. First, it protects whatever the manufacturer can legitimately claim is a trade secret. Second, it carves out an explicit permission for the plaintiff’s counsel to share the protected materials with attorneys handling similar cases against the same defendant, on the condition that the receiving lawyer signs onto and is bound by the same protective order.
In practice, sharing protective orders typically include a list of permitted recipients, a procedure for designating new recipients, an obligation to maintain confidentiality, and an acknowledgment that violation of the order is sanctionable. Some include attorney-eyes-only tiers for the most sensitive material; some require notification to the manufacturer when documents are shared.
The cleanest illustration of why sharing matters is the General Motors ignition switch litigation. Atlanta-based AIEG member Lance Cooper deposed a GM engineer, Ray DeGiorgio, who testified that GM had never authorized any change to the ignition switch design. After that deposition, Mr. Cooper—through documents made available through prior litigation and information sharing—located a part-change order signed by the same engineer. The juxtaposition of the sworn denial and the signed change order ultimately led to the unraveling of GM’s decade-long ignition switch cover-up, billions of dollars in penalties, and the recall of millions of vehicles.
Without a sharing protective order—or rather, without the prior sharing orders that allowed Mr. Cooper to find the document at all—the cover-up would have continued. That is not an isolated example. AIEG members have used sharing orders to expose Takata airbag inflator defects, Toyota sudden unintended acceleration histories, and dozens of tire and rollover defect campaigns.
Manufacturers, recognizing the power of sharing orders, have spent the last decade trying to introduce a backdoor: the return-of-documents provision. A return provision requires the plaintiff’s counsel, at the conclusion of the case, to return all confidentially designated documents and to certify destruction of any copies. The practical effect is to terminate access for the next case and to wipe out institutional memory.
AIEG and Public Justice have led a national effort to oppose return-of-documents provisions and to obtain ethics opinions in each state declaring such provisions inconsistent with counsel’s duty of competence. Several jurisdictions have agreed. Cronauer Law follows AIEG protocol on this issue and will not voluntarily agree to a return provision; where the court orders one over our objection, we preserve appellate rights and document our exposure to subsequent counsel.
When a defendant proposes a non-sharing or return-only protective order, our practice is straightforward. We tender our standard sharing protective order with appropriate trade-secret protections. We oppose return provisions on the record and submit briefing supported by the AIEG and Public Justice ethics work. We resist over-designation of documents as confidential and force the manufacturer to specifically justify the trade-secret claim for each document, consistent with cases like Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994), which require courts to balance the parties’ interests and the public’s interest in access.
We are also prepared, where appropriate, to seek to unseal materials at the conclusion of the case so the public learns what the manufacturer was hiding. Public access serves more than the next case; it serves the consumers buying the products today.
For a catastrophically injured client, the sharing protective order is the difference between a case the manufacturer thinks it can outspend and a case the manufacturer knows it has already lost on the documents. Our clients benefit from forty years of accumulated AIEG document sharing on roof crush, seatbelts, fuel systems, tires, stability, structures, and child safety seats. The defense bar knows this, and it is one of the reasons Cronauer Law’s crashworthiness clients tend to receive realistic, full-value valuations earlier than they otherwise would.
Because they have to. Discovery in a crashworthiness case is impossible without exchanging confidential corporate material. The question is not whether to have a protective order; it is what kind of protective order to have. We negotiate sharing orders that protect legitimate trade secrets while preserving counsel’s ability to use the documents to help others.
Yes. Federal courts have repeatedly upheld sharing protective orders against challenges, and AIEG-aligned lawyers have a long, clean track record of compliance. Defense counsel sometimes argue that sharing is inconsistent with confidentiality; courts have rejected that argument so long as the receiving lawyer signs onto the order.
It can try. The defendant can move to designate specific documents as attorney-eyes-only or to limit sharing for particularly sensitive items. Courts evaluate those requests on a document-by-document basis and routinely find that broad-brush confidentiality designations fail under Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994), and similar authority.
Your case is still litigable, but your counsel gives up a meaningful institutional advantage and contributes to the long-term suppression of evidence other plaintiffs need. AIEG members have committed not to do this voluntarily, and Cronauer Law follows that commitment.
Not measurably. The work to negotiate the order is front-loaded; the benefit—earlier access to relevant documents and depositions from prior cases—generally accelerates the substantive litigation.
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