Opinion
CAUSE NO. 1:04-CV-449.
October 14, 2005
OPINION AND ORDER
Before the Court is a proposed protective order stipulated to by the parties. (Docket # 41.) As the proposed order is overly broad, it will be DENIED.
Federal Rule of Civil Procedure 26(c)(7) allows the Court to enter a protective order for good cause shown. See Citizens First Nat'l Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 946 (7th Cir. 1999). However, the protective order submitted by the parties falls short of establishing a basis for finding good cause.
The proposed order seeks to protect categories of material that are impermissibly broad both during discovery and throughout the litigation. ( See Proposed Stipulated Protective Order ¶ 7) ("A Designator may designate Material as `Confidential' or `Confidential-Counsel Only' if that Material is among the categories of Materials defined in Paragraphs 4 and 5. . . ."); ( see also id. ¶¶ 4, 5, 10). First, many of the "categories" in Paragraph 4 (such as "Non-Public," "Parties," and "Person") are not properly demarcated categories of protected material, but rather are definitions. This creates vague and meaningless categories of potentially protected material. Second, seven of the eleven categories of protected material articulated in Paragraph 5 hinge on the term "Non-Public," defined in the Proposed Order as "material not disclosed to the public." This again results in categories of protected material that are overly broad and vague.
`Non-public' is too vague. If it means only that the information is not available to the general public, then it is insufficient because the information must be kept secret from and not be readily ascertainable by potential competitors. . . . If the parties seek non-trade secret protection for any . . . information, they must present reasons for protection and criteria for designation other than simply that the information is not otherwise publicly available. They must describe a category or categories of information and show that substantial privacy interests outweigh the presumption of public access to discovery material.Cook Inc. v. Boston Scientific Corp., 206 F.R.D. 244, 248-49 (S.D. Ind. 2001).
Under Cincinnati Insurance, a protective order must only extend to "properly demarcated categor[ies] of legitimately confidential information." Cincinnati Insurance, 178 F.3d at 946; see also MRS Invs. v. Meridian Sports, Inc., No. IP 99-1954-C-F/M, 2002 WL 193140, at *1 (S.D. Ind. Feb. 6, 2002) (rejecting proposed protective order because categories of protected information were overly broad and vague); Cook, 206 F.R.D. at 248-49; Andrew Corp. v. Rossi, 180 F.R.D. 338, 342 (N.D. Ill. 1998). Here, the Court is not satisfied that the parties know what information constitutes protected material. See Cincinnati Insurance, 178 F.3d at 946 (a judge must "satisf[y] himself that the parties know what a trade secret is and are acting in good faith in deciding which parts of the record are trade secrets"). Indeed, if the Court were to approve this order, both parties would be left with a "virtual carte blanche . . . to seal whatever portions of the record the party wanted to seal." Cincinnati Insurance, 178 F.3d at 944. The Seventh Circuit has repeatedly held that such overly broad protective orders are invalid. See, e.g., id. at 945 (noting that a broad protective order granting carte blanche discretion to a party is invalid).
"Obtaining a protective order in an appropriate case need not be a[n] 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." Shepard v. Humke, IP 01-1103-C-H/K, 2003 WL 1702256, at *2 (S.D. Ind. March 28, 2003). Of course, the parties may submit a protective order consistent with the requirements of Rule 26(c)(7) and Seventh Circuit case law, but what has been submitted thus far is inadequate.
For these reasons, the Court hereby DENIES approval of the proposed stipulated protective order submitted by the parties. (Docket # 41.) SO ORDERED.