Opinion
CAUSE NO. 1:04-CV-365.
August 2, 2005
OPINION AND ORDER
Before the Court is a stipulation by the parties seeking approval of a proposed protective order. (Docket # 24, 30.) As the proposed order contains major defects, it will be DENIED.
Federal Rule of Civil Procedure 26(c) allows the Court to enter a protective order for good cause shown. See Citizens First Nat'l Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 946 (7th Cir. 1999). However, the protective order submitted by the parties provides no basis for finding good cause. Instead, the order contains an expansive definition of confidential information that is impermissibly broad. It asserts to protect "information that the source reasonably believes is confidential, or which is subject to confidential treatment under state or federal law and shall include information that the source reasonably believes to contain [sic] information designated as confidential under state or federal law, or to be of a highly sensitive nature." (Proposed Agreed Protective Order ¶ 5.)
First, the proposed order's definition of protected material as information that is "confidential," "subject to confidential treatment under state or federal law," or of a "highly sensitive nature," is overly broad and vague. Under Cincinnati Insurance, a protective order must only extend to "properly demarcated categor[ies] of legitimately confidential information." 178 F.R.D. at 946; see also MRS Invs. v. Meridian Sports, Inc., No. IP 99-1954-C-F/M, 2002 WL 193140, at *1 (S.D. Ind. Feb. 6, 2002) (rejecting proposed protective order because categories of protected information were overly broad and vague); Cook Inc. v. Boston Scientific Corp., 206 F.R.D. 244, 248-49 (S.D. Ind. 2001); Andrew Corp. v. Rossi, 180 F.R.D. 338, 342 (N.D. Ill. 1998). The proposed category of information that is "subject to confidential treatment under state or federal law" is too vague, as the validity of this category "depends upon the content of the subject statutes and rules, and on the scope of any applicable judicial or administrative orders"; instead, "the parties should identify the specific statutes, rules, court orders, and administrative orders on which they rely, together with a description of the criteria of applicability of each." Cook, 206 F.R.D. at 249. Furthermore, the other two categories of proposed protected information ("confidential" and of a "highly sensitive nature") are simply subjective and overly broad. See Cincinnati Insurance, 178 F.R.D. at 946 (a judge must satisfy himself that the parties know what confidential information is and are acting in good faith in deciding which parts of the record are confidential).
Second, the proposed order purports to declare confidential any documents that merely "contain" protected information, rather than just the protected information itself. See id. at 945 (stating that an order sealing documents believed to contain confidential information is overly broad because a document containing confidential information may also contain material that is not confidential, in which case a party's interest in maintaining the confidential information would be adequately protected by redacting only portions of the document).
Third, the proposed order's definition permits information to be protected based upon the disclosing party's belief that the information is confidential. However, the term "believes" as used in the proposed order is a "fudge," resulting in a definition that is overly broad. See id. Furthermore, the parties' attempt to qualify the term "believes" by the phrase "reasonably" fails to sufficiently cure the deficiency. See generally Shepard v. Humke, IP 01-1103-C-H/K, 2003 WL 1702256, at *1 (S.D. Ind. March 28, 2003).
Fourth, the definition of "confidential" information is basically meaningless, because the proposed order gives Defendants a virtual unlimited ability to designate information as "confidential." ( See Proposed Agreed Protective Order ¶ 4.) Furthermore, the category of confidential information is prefaced by the word "includes" (rather than, for example, the word "means"), resulting in a category that is not adequately fenced in. ( See id. ¶ 5.)
In sum, the Court is not satisfied that the parties know what information constitutes protected "confidential" information. See Cincinnati Insurance, 178 F.3d at 946. Indeed, if the Court were to approve this order, Defendants would be left with a "virtual carte blanche . . . to seal whatever portions of the record the party wanted to seal." Id. at 944. The Seventh Circuit has repeatedly held that such overly broad protective orders are invalid. See, e.g., id. at 945 (noting that a broad protective order granting carte blanche discretion to a party is invalid).
Furthermore, while the proposed protective order characterizes the protective order as governing "the course of discovery," it actually extends the protection throughout the litigation process. ( See Proposed Agreed Protective Order at Introduction, ¶ 4.) In Cincinnati Insurance, the Seventh Circuit denied the proposed protective order because "in the first place the protective order that was entered in this case is not limited to the pretrial stage of litigation, and in the second place the public at large pays for the courts and therefore has an interest in what goes on at all stages of a judicial proceeding." Cincinnati Insurance, 178 F.3d at 945.
Finally, Cincinnati Insurance specifies that protective orders may only issue if the order "makes explicit that either party and any interested member of the public can challenge the secreting of particular documents." Id. at 946. Here, the proposed order contains no such language.
"Obtaining a protective order in an appropriate case need not be a[n] onerous task. But such an order may not issue absent an appropriate showing of good cause, as well as adherence to the other limitations the Seventh Circuit has emphasized apply to such orders." Shepard, 2003 WL 1702256, at *2. Of course, the parties may submit a revised protective order consistent with the requirements of Rule 26(c) and Seventh Circuit case law, but what has been submitted thus far is inadequate under Cincinnati Insurance.
Upon resubmission of this or any other proposed protective order, the parties may submit briefs asserting why the standards articulated by the Seventh Circuit in Cincinnati Insurance do not apply in this case, if they so contend.
For these reasons, the Court hereby DENIES approval of the agreed protective order submitted by the parties (Docket # 24, 30). SO ORDERED.