Opinion
No. 03-2081-GTV
November 25, 2003
MEMORANDUM AND ORDER
Plaintiffs bring this action against Signator and its agents for alleged securities and common law violations in management of their retirement savings. Currently pending before the Court is the Motion for Protective Order (doc. 34) filed by individual Defendant Signator Investors, Inc. ("Signator"). More specifically, Signator requests the Court enter its proposed protective order, which restricts dissemination and use of documents Signator designates as confidential and proprietary. Plaintiffs oppose Signator's Motion, arguing Signator has failed to establish the good cause required for a blanket protective order.
Discussion
Fed.R.Civ.P. 26(b)(1) allows broad discovery, not only of "any matter, not privileged, that is relevant to the claim or defense of any party," but also of matters that appear "reasonably calculated to lead to the discovery of admissible evidence." In the face of the broad scope of permissible discovery, Fed.R.Civ.P. 26(c) provides a mechanism, available in appropriate cases, to limit the discovery or dissemination of certain information. Upon a showing of good cause and as justice may require "to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense," a court may, among other things, enter a protective order providing that discovery "not be had" or "be had only on specified terms and conditions."
Fed.R.Civ.P. 26(c)(1) and (2).
There are at least three kinds of protective orders that courts utilize to limit the discovery or dissemination of confidential or private information: (1) particular protective orders; (2) blanket protective orders; and (3) umbrella protective orders. Particular protective orders cover specific, identified information and usually is sought by a party prior to disclosing the information for which protection is sought. Umbrella protective orders designate all discovery produced in a particular litigation as protected without any prior review, by either a court or the parties.
Gillard v. Boulder Valley Sch. Dist., 196 F.R.D. 382, 385 (D. Colo. 2000) (citation omitted).
Id.
Id.
Between the two extremes is the blanket protective order, which place upon the parties themselves the initial burden of determining what information is entitled to protection. Normally, a blanket protective order requires counsel for a producing party review the information to be disclosed and designate the information it believes, in good faith, is confidential or otherwise entitled to protection. The designated information is thereafter entitled to the protections afforded by the blanket protective order unless the designation is objected to by an opposing party. Judicial review of a party's designation as confidential occurs only when there is such an objection which the parties cannot resolve by agreement.
Id.
Id.
Id. at 385-86 (citation omitted).
"Blanket protective orders routinely are approved by courts in civil cases, frequently on the stipulated request of the parties." The agreement of all parties is not required to enter a blanket protective order as long as the party seeking protection makes some threshold showing of good cause to believe that discovery will involve confidential or protected information. This showing may be done on a generalized as opposed to a document-by-document basis.
Id. at 386.
"Moreover, even though a blanket protective order permits all documents to be designated as confidential, a party must agree to only invoke the designation in good faith. After receiving documents, the opposing party has the right to contest those documents which it believes not to be confidential." If this happens, the party seeking the protection bears the burden of proof to justify retaining a designation of confidentiality. Notably, the burden of proving confidentiality never shifts from the party asserting that claim — only the burden of raising that issue.
Id.
Id. (citation omitted).
In this case, Signator has made a threshold showing of good cause to believe that discovery may very well involve the disclosure of confidential information, including "business documents that contain confidential information that is not made available to the public, the disclosure of which would give Signator's competitors a clear view of its operations and business." Moreover, entry of a blanket protective order in this case will serve the interests of a just, speedy, and less expensive determination of complex disputes because the process will alleviate delay in production of documents and information; the issue of confidentiality will be resolved by the Court, if necessary, after the documents have been produced to the other parties.
Declaration of Lawrence Niland, Ex. 1 to Signator's Motion for Protective Order (doc. 34).
Based on this discussion, Signator's Motion for Protective Order is hereby granted. To that end, the Court orders the parties to confer and then submit a jointly proposed blanket protective order by December 9, 2003 that limits the dissemination of confidential or private information to be produced in this litigation. It is further ordered that such blanket protective order shall
(1) include, in the first paragraph, a concise but sufficiently specific recitation of the particular facts in this case that provided the Court with an adequate basis upon which to make the required finding, see, supra, of good cause pursuant to Fed.R.Civ.P. 26(c);
(2) require that a lawyer designate information as confidential only after a review of the information and based on a good faith belief that it is confidential or otherwise entitled to protection; and
(3) provide a procedure by which the confidential designation may be challenged, and upon such a challenge place the burden on the party seeking protection to establish good cause.
If the parties disagree concerning the scope or form of such protective order, the party or parties seeking such an order shall file an appropriate motion and supporting memorandum by December 12. 2003 .
IT IS SO ORDERED.