Opinion
CAUSE NO. IP 99-1954-C-F/M
February 6, 2002
ENTRY on Proposed Agreed Protective Order (doc. no. 61).
Federal courts must independently determine whether "good cause" exists for proposed protective orders. Fed.R.Civ.P. 26(c); Citizens First National Bank of Princeton v. Cincinnati Insurance Co., 178 F.3d 943 (7th Cir. 1999). They may not grant parties carte blanche to seal or protect whatever documents or matters they desire. Citizens First, 178 F.3d at 944. Independent and careful evaluations of protective orders are especially important because "[t]he judge is the primary representative of the public interest in the judicial process . . . ." Citizens First, 178 F.3d at 945. When presented with an agreed proposed protective order seeking to seal documents produced in discovery, a court must ensure that (1) the information sought to be protected falls within a legitimate category of confidential information, (2) the information or category sought to be protected is properly described or demarcated, (3) the parties know the defining elements of the applicable category of confidentiality and will act in good faith in deciding which information qualifies thereunder, and (4) the protective order explicitly allows any party and any interested member of the public to challenge the sealing of particular documents. Id., 178 F.3d at 946.
The parties have proposed a protective order that does not meet this standard. The parties are encouraged to review the Citizens First opinion and other pertinent authorities and to resubmit a conforming proposed order.
In part, the proposed order's definition of "Confidential Discovery Materials" is far too vague and overbroad. Because it is unclear what material is covered by the categories "proprietary information", "confidential information", and "sensitive and/or private material related to persons not parties to this litigation", the Court cannot have confidence that the parties will constrain their designations to legitimate categories of protection. In addition, "financial data" and "material related to . . . the breach of the producing party's confidence to a client" are not recognized categories of confidential information. The category "trade secrets", while a recognized category of confidentiality, is not defined and, in light of the vagueness and overbreadth of the other proposed categories, the Court will require a showing that the parties understand the elements and limits of the definition of trade secrets. Another problem with the proposed order is that it fails to explicitly allow interested members of the public to challenge the parties' designations of documents.
The parties' motion for issuance of the Proposed Agreed Protective Order is denied, with leave to resubmit.