Opinion
CIVIL ACTION NO. H-09-2741.
May 28, 2010
ORDER
The parties have submitted an agreed protective order in this case. The court has two concerns about the proposed Agreed Protective Order (Docket Entry No. 10).
First, paragraphs 7 and 14 do not make clear that filing in the public records of the court, under seal, material and information designated as protected or confidential during discovery, requires a separate motion for leave and a showing of good cause, beyond the parties' designation. The protective order should make clear that when documents designated by the parties as confidential are filed with the court, they may initially be filed under seal but will not be maintained under seal unless the party designating them as confidential files a motion to do so, within 7 days after the filing, and shows good cause for sealing the documents.
Second, paragraph 11 does not make clear that inadvertently producing materials that are asserted to be covered under either attorney-client privilege or work-product protection does not waive the privilege. See Rule 502(d) of the Federal Rules of Evidence.
No later than June 18, 2010, counsel are directed to submit a revised proposed protective order or explain why they do not want to make the changes described.