IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

SUNBEAM PRODUCTS, INC., )
a Delaware corporation, )
)No.97C6313
Plaintiff)
)Judge Leinenweber
v.)
)Magistrate Judge Keys
AMERICAN MEDICAL ASSOCIATION,)
an Illinois corporation,)
)
Defendant.)
)
ASSOCIATION OF AMERICAN)
PHYSICIANS & SURGEONS, INC.,)
)
Intervenor. )

THE ASSOCIATION OF AMERICAN PHYSICIANS & SURGEONS'
OPPOSITION TO SUNBEAM'S MOTION TO ALTER OR AMEND

The Association of American Physicians & Surgeons, Inc. ("AAPS"), by its attorneys, hereby submits its Opposition To Sunbeam's Motion To Alter Or Amend.

1. On November 6, 1998, Sunbeam filed its Motion To Alter Or Amend the Court' s Order dated November 3, 1998. In its motion, Sunbeam requested "that the record be clarified to reflect that the Confidentiality Order still applies in full force and effect to Sunbeam's confidentiality designations." Sunbeam's Motion at 3.

2. In support of its motion, Sunbeam quoted from Brent Austin's September 8, 1998 letter to Edward X. Clinton, Jr., counsel for AAPS, which states that "the Association's Motions do not cover, do not seek disclosure of, and do not seek to remove the Confidentiality Order's protections from the documents produced by Sunbeam under the Confidentiality Order."

3. On November 9, 1998, Clinton wrote to Sunbeam's counsel concerning the motion. (The letter is attached as Exhibit A.) The letter expressly requested that Sunbeam retain and preserve all documents produced in the litigation, including the documents produced by the American Medical Association.

4. Sunbeam did not respond to Clinton's November 9, 1998 letter.

5. On November10, 1998, Clinton wrote to Sunbeam's counsel and stated "it is well- established that your firm has a duty to preserve all the discovery materials" in the litigation. (The letter is attached as Exhibit B.)

6. Sunbeam did not respond to Clinton's November 10, 1998 letter.

7. Sunbeam appears to be negotiating an agreement with the AMA under which each party will return the documents produced by the other party. Such an agreement would be inconsistent with this Court's Order dated November 3, 1998, and inconsistent with the original understanding between Sunbeam and AAPS. Accordingly, AAPS opposes Sunbeam's Motion To Alter Or Amend unless and until Sunbeam represents that it will retain and preserve all discovery materials in this proceeding as outlined in the attached letters.

8. Under the Court's order dated November 3, 1998 and Rule 26(c) of the Federal Rules of Civil Procedure, Sunbeam is required to show good cause for the entry of the protective order. Like the AMA, Sunbeam has not shown good cause. Therefore, Sunbeam should not be entitled to keep its documents confidential. As the Seventh Circuit has noted, "even if the parties agree that a protective order should be entered, they still have the burden of showing that good cause exists for issuance of that order." Jepson, Inc. v. Makita Elec. Works, Ltd., 30 F.3d 854, 858 (7th Cir. 1994) (quotations omitted). Sunbeam has made no attempt to "clearly define the serious harm likely to result from public disclosure." Wauchop v. Domino 's Pizza, Inc., 138 F.R.D. 539, 546 (N.D. Ind. 1991) (citing several precedents). Therefore, Sunbeam is not entitled to the entry of a protective order.

For the foregoing reasons, the AAPS respectfully requests that this Court deny Sunbeam's Motion To Alter Or Amend.

Dated: November 17, 1998 Association of American Physicians & Surgeons, Inc.