Opinion
No. 03-2303-CM
November 4, 2003
ORDER
Pending before the Court is the parties' Joint Motion for Protective Order (doc. 15). More specifically, the parties seek
• to have deemed as confidential and proprietary — and to limit use of such confidential and proprietary — information produced in this litigation; and
• to provide a mandatory procedure for moving that such documents be filed under seal with the Court in the event such documents are presented in connection with a court filing.
In support of this Motion, the parties state such an order is necessary "to ensure and maintain the confidentiality of certain personnel, financial, medical and other records which maybe produced by plaintiff or defendant in response to pretrial discovery requests [and thus] protect plaintiff and defendants from invasions of privacy, embarrassment [and] disclosure of trade secrets or proprietary information."
Whether to enter a protective order is within the sound discretion of the court. Fed.R.Civ.P. 26(c) provides that the court, upon a showing of good cause, "may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." The party seeking a protective order has the burden to show good cause for it. To establish good cause, that party must submit "a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements."
Thomas v. IBM, 48 F.3d 478, 482 (10th Cir. 1995).
Sentry Ins. v. Shivers, 164 F.R.D. 255, 256 (D.Kan. 1996)
Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n. 16 (1981).
Upon review of the Motion and the proposed Protective Order submitted, the Court finds the parties have shown good cause to keep the referenced discovery materials confidential between the parties. Notwithstanding their agreement, the Court finds the parties have failed to demonstrate good cause to file these discovery materials under seal. That the parties all agree to the requested protective order does not dispense with the requirement to show good cause. If a party desires to file under seal a document deemed confidential between the parties, the party may file a specific motion demonstrating good cause for each document requested. Based on this discussion, upon review of the unopposed motion and for good cause shown, it is hereby ordered the parties' Motion for Protective Order (doc. 15) is granted in part and denied in part as specifically set forth below:
1. This Protective Order shall govern any documents or other discovery materials, including, but not limited to (a) documents from the personnel file of any current or former employee of defendants other than plaintiff, or other documents which name or otherwise identify any such current or former employee of defendants other than plaintiff, and (b) documents that contain financial, medical, proprietary or otherwise confidential material of plaintiff or defendants, which documents or materials are produced in response to any discovery requested or obtained by plaintiff or defendants in the above-captioned case and are designated "Confidential."
2. It is understood by the parties that all such documents specifically so designated by any party, and the information contained in such documents, are confidential as the documents contain personal, financial, medical, proprietary or otherwise confidential information.
3. All such documents so designated by any party, and the information contained in such documents, shall be treated as confidential by all persons covered by this Agreement, and shall be used solely for the prosecution or defense of this action. No such document, and no information contained in any such document, shall be disclosed to anyone, in any manner whatsoever, except as provided herein.
4. Nothing in the Protective Order shall be construed to prevent counsel for either party from disclosing such documents, and the information contained in such documents, to persons assisting counsel in the preparation or presentation of either party's case, or from exhibiting any such documents or confidential information to said persons assisting counsel or to deponents during the course of their depositions, or to court reporters. Nothing in the Protective Order shall prevent plaintiff or defendants from using for any other business purpose of plaintiff or defendants the documents or the information contained therein which it produces to plaintiff or defendants.
5. Disclosure shall not be made of any such document to any individual including expert witnesses (but excluding counsel or support staff) unless and until counsel shall have first presented to such individual a copy of the Protective Order. All counsel shall require such person to read the Protective Order and to acknowledge reading and understanding the terms of the Protective Order by placing his or her signature on a separate sheet attached to the Protective Order. All such persons shall be bound by the terms of the Protective Order and shall not permit disclosure or exhibition of the documents, or information contained in such documents, other than pursuant to the terms of the Protective Order.
6. The parties may consent that a document produced pursuant to discovery may be removed from the scope of the Protective Order. Such consent shall be indicated in writing addressed to the opposing counsel.
7. If a party considers a document not to be confidential and desires the removal of such designation, counsel for that party shall discuss the matter with the opposing counsel to ascertain if confidentiality by agreement maybe lifted or narrowed. If agreement of counsel cannot be had, then the Court may, upon application, make such order as is appropriate in the circumstances.
8. It is further understood that no copies shall be made of any documents produced by either party, unless necessary in connection with this litigation.
9. The termination of proceedings in this action shall not relieve any person to whom confidential material has been disclosed from the obligations of the Protective Order, unless the Court orders otherwise.
10. This Order is not rendered to the prejudice of either party to seek further protective orders throughout the process of discovery or otherwise during this litigation.
IT IS SO ORDERED.