Opinion
Case No. 1:13-cv-383
03-05-2014
CATHY NOLAN, Plaintiff v. FIRST CHOICE HOME HEALTH OF OHIO, INC., et al., Defendants
Dlott, J.
Litkovitz, M.J.
ORDER
This matter is before the Court on the parties' "Stipulated Confidentiality Agreement and Protective Order" (Doc. 33) filed on March 4, 2014. For the reasons that follow, the "Stipulated Confidentiality Agreement and Protective Order" is stricken.
Pursuant to Fed. R. Civ. P. 26(c), "[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." The entry of a protective order rests within the sound discretion of the Court. Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996). Nevertheless, the Court is mindful that its discretion to issue protective orders is "limited by the careful dictates of [Rule] 26 and 'is circumscribed by a long-established legal tradition' which values public access to court proceedings." Id. (citing Brown & Williamson Tobacco Corp. v. Fed. Trade Commn., 710 F.2d 1165, 1177 (6th Cir. 1983)).
The parties have filed a "Stipulated Confidentiality Agreement and Protective Order" (Doc. 33) without moving for the entry of a protective order. The proper procedure is to file a motion for the entry of a protective order along with a joint proposed protective order.
Also, any proposed protective order must comply with Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219 (6th Cir. 1996), and must indicate that the Court, not the parties, determines which documents may be filed under seal. Under Fed. R. Civ. P. 26(c) and Sixth Circuit law, the sealing of court papers may be made only upon a showing of "good cause" to the Court. See Procter & Gamble Co., 78 F.3d at 227. The Court "cannot abdicate its responsibility to oversee the discovery process and to determine whether filings should be made available to the public" and may "not turn this function over to the parties. . . ." Id.
In this case, Paragraphs 8 and 9 of the proposed protective order do not comply with the Procter & Gamble case. To remedy the proposed protective order, the parties must include language clarifying the Court's duty and the proper procedure for filing documents under seal, such as the following:
This Protective Order does not authorize filing protected materials under seal. No document may be filed with the Court under seal without prior permission as to each such filing, upon motion and for good cause shown, including the legal basis for filing under seal. See Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219 (6th Cir. 1996). Unless the Court orders otherwise, all sealed documents shall be filed according to S. D. Ohio Civ. R. 79.3.
For the reasons stated above, the Court STRIKES the parties' "Stipulated Confidentiality Agreement and Protective Order" (Doc. 33) and DIRECTS the parties to submit by motion a revised joint proposed protective order that complies with this Order.
IT IS SO ORDERED.
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Karen L. Litkovitz, Magistrate Juage
United States District Court