Opinion
No. 00-B-2050.
November 30, 2000.
ORDER
This matter is before me on the parties' Stipulated Protective Order (the "Proposed Protective Order"), filed November 28, 2000. For the following reasons, the Proposed Protective Order is REJECTED. The parties may submit a revised draft Protective Order consistent with the comments contained in this Order.
The Proposed Protective Order fails to provide a clear procedure by which a party may challenge the designation of information as confidential. Paragraph 9 of the Proposed Protective Order addresses the issue indirectly, as follows:
The acceptance by a party of CONFIDENTIAL MATERIALS shall not constitute an admission or concession or permit an inference that the CONFIDENTIAL MATERIALS are, in fact, confidential. This Protective Order shall not foreclose a party from moving for an Order that any CONFIDENTIAL MATERIALS are not, in fact, confidential.
This paragraph appears improperly to place upon the party objecting to confidentiality the burden of showing that the protection should not be given. Rule 26(c), Fed.R.Civ.P., by contrast, places the burden on the party seeking protection to establish that it is appropriate:
Upon motion by a party or by the person from whom discovery is sought, . . . and for good cause shown, the court . . . may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
* * *
(7) that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a designated way. . . .
(Emphasis added.) See Gillard v. Boulder Valley School District, 196 F.R.D. 382, 386-87 (D. Colo. 2000) (requiring that a blanket protective order provide a procedure by which a designation that information is confidential may be challenged and that upon such a challenge the burden shall be on the party seeking protection to establish good cause for continued protection). The procedure contained in the protective order entered in the Gillard case satisfies this requirement:
A party may object to the designation of particular CONFIDENTIAL information by giving written notice to the party designating the disputed information. The written notice shall identify the information to which the objection is made. If the parties cannot resolve the objection within ten (10) business days after the time the notice is received, it shall be the obligation of the party designating the information as CONFIDENTIAL to file an appropriate motion requesting that the court determine whether the disputed information should be subject to the terms of this Protective Order. If such a motion is timely filed, the disputed information shall be treated as CONFIDENTIAL under the terms of this Protective Order until the Court rules on the motion. If the designating party fails to file such a motion within the prescribed time, the disputed information shall lose its designation as CONFIDENTIAL and shall not thereafter be treated as CONFIDENTIAL in accordance with this Protective Order. In connection with a motion filed under this provision, the party designating the information as CONFIDENTIAL shall bear the burden of establishing that good cause exists for the disputed information to be treated as CONFIDENTIAL.
Id. at p. 388-89. If the parties want to pursue entry of a protective order, they are directed to submit a revised draft order which, upon objection, places the burden on the party designating the information as confidential to establish good cause to continue to impose the restrictions of the protective order as to the information or documents subject to the objection.