Opinion
Cause No. IP 01-1103-C-H/K
March 28, 2003
ORDER DENYING APPROVAL OF STIPULATED PROTECTIVE ORDER
This cause is before the Court on a stipulation by the parties seeking approval of a protective order that would, among other restrictions, require certain "confidential information" to be filed under seal. On January 24, 2003, the parties submitted their first proposed protective order, but the Court declined to approve it. By order dated January 29, 2003, this Court stated, "The proposed protective order is exceedingly broad in scope, and fails to adhere to the limitations on protective orders established by the Seventh Circuit Court of Appeals. See Citizens First National Bank of Princeton v. Cincinnati Insurance, 178 F.3d 943 (7th Cir. 1999); Union Oil Company of California v. Leavell, 220 F.3d 562 (7th Cir. 2000); Baxter International v. Abbott Laboratories, 297 F.3d 544 (7th Cir. 2002)." [Docket #83, p. 1]. This order went on to note that the "proposed protective order submitted in this case runs contrary to the authority cited above, and suggests that the parties made no discernible effort to conform their proposed order to the limitations this case law has established." [Docket #83, p. 2].
The parties' revised protective order remains problematic. Two shortcomings are particularly noteworthy. First, the order defines "confidential information" (which the parties would propose to file under seal and otherwise keep secret in connection with this matter) as follows:
[A]ny pre-trial disclosures of documents, testimony, responses to interrogatories or requests for admissions, or other information, that a party or witness designates as "confidential" at the time of the disclosure, whether such designation be in writing or on the record, which designation is based on a good faith belief that said information relates to that party's or witness' trade secrets, or other proprietary research, development, or commercial information which provides a business advantage to the party over its competitors, and the disclosure of which could irreparably harm the designating party. (Emphasis added).
Fed.R.Civ.P. 26(c)(7) allows the Court to enter a protective order for good cause shown. Cincinnati Insurance, 178 F.3d at 946. However, the protective order submitted by the parties provides no basis for a finding of good cause. Instead, the order contains a broad, sweeping definition of confidential information lacking any specifics whatsoever. As set forth above, the proposed order permits information to be deemed confidential based upon a party's or witness' belief that the information contains trade secrets, and which could irreparably harm the designating party. However, in Cincinnati Insurance, the Seventh Circuit stated that an order limiting itself to documents "believed" to contain trade secrets is over broad. "The word believed is a fudge." Id. at 945. The fact that the parties in the case at bar qualify this belief as being based upon "good faith" does not sufficiently cure this shortcoming. Moreover, the Baxter court stated that merely asserting that a disclosure of the information "could" harm a litigant's competitive position is insufficient; the motion must explain how. Baxter, 297 F.3d at 547. The parties' proposed protective order submitted in this case is wholly devoid of any explanation as to how the proposed confidential information would harm the litigants.
Second, Cincinnati Insurance specified that protective orders such as the parties seek in this case 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." Cincinnati Insurance, 178 F.3d at 946. Language such as this is missing from the tendered order. This obvious shortcoming suggests to the Court that the parties have yet to make any discernable effort to conform their proposed order to the limitations that the case law has established.
Obtaining a protective order in an appropriate case need not be a 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. In denying the parties' proposed protective order on January 29, 2003, the Court stated, "The parties may submit a revised proposed protective order consistent with the foregoing." [Docket #83, p. 2]. The Court reiterates this invitation. However, if the proposed protective order falls short again, this Court is unlikely to examine this issue a third time.