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When more than 50 black Waffle House customers announced their intent to sue Waffle House Inc. last fall, they sought publicity for their allegations at a news conference. But seven months later, both sides essentially are litigating the case in private. Waffle House and the plaintiffs have sought protective orders in discovery in five related suits that allege discrimination against black customers. Plaintiffs say they have to agree to the restaurant chain’s requests for protective orders in order to move along the litigation, though the plaintiffs have sought at least one protective order themselves. Last month, four federal judges in Georgia — U.S. District Chief Judge Orinda D. Evans, U.S. District Judge Robert L. Vinings Jr., U.S. District Judge Clarence Cooper and U.S. District Judge Richard W. Story — issued broad protective orders in four of five pending Waffle House race discrimination cases. Evans has under consideration a fifth protective order — this one sought by the plaintiffs over the objections of Waffle House attorneys — regarding scheduled depositions of the plaintiffs. The protective orders now in place shield from public review documents, videotapes, audiotapes or other written materials produced by both parties. In some cases, the orders extend beyond the life of the litigation. Once the suits are terminated, at least one protective order requires that all confidential discovery material be returned to the lawyers who provided it. The reasons given for seeking the protective orders include efforts by Waffle House and its franchisees to bar what their lawyers claim would be disclosure of trade secrets and commercial information. Plaintiffs’ lawyers also have sought to prevent the disclosure of confidential or sensitive business information regarding their clients. One Waffle House interrogatory sought the names of all medical practitioners, including psychologists, who had treated each plaintiff since 1999, and the nature of the treatment. Waffle House attorneys also have sought the fee agreements between the plaintiffs and their counsel. Plaintiffs’ attorney Thomas J. Barton, a partner at Drinker Biddle & Reath in Philadelphia, could not be reached for comment. Plaintiffs’ lawyer Henderson Hill of Ferguson, Stein, Chambers, Adkins, Gresham & Sumter in Charlotte, N.C., referred questions to Barton who, Hill said, likely agreed to the protective orders because Waffle House had refused to provide discovery without one. “Unless we get the discovery, which the court is not going to provide unless some form of protective order is proposed, we won’t be able to reach the trial,” he said. Even with those orders in place, Hill said obtaining discovery from Waffle House has been “incredibly hard. We’re fighting over that now.” Waffle House Vice President and General Counsel Jonathan S. Waller was traveling Tuesday and could not be reached for comment.

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