United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
COLLINS, UNITED STATES MAGISTRATE JUDGE.
the Court is a proposed stipulated protective order (DE 17)
filed by the parties, which the Court deems to be a joint
motion seeking approval of the proposed stipulated protective
order pursuant to Federal Rule of Civil Procedure 26(c).
Because the proposed order is inadequate in several respects,
the motion will be DENIED.
26(c) 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). A protective order, however, must only extend to
“properly demarcated categor[ies] of legitimately
confidential information.” Id.; see 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, Inc. v.
Boston Sci. Corp., 206 F.R.D. 244, 248-49 (S.D. Ind.
the proposed order allows the parties to designate as
“Confidential Information” material that
“includes but is not limited to employee information,
personnel records, compensation information, financial and
tax information, medical records, and medical
information.” (DE 17 ¶ 1(B)). The first problem
with this text is that by prefacing the proposed categories
with the phrase “includes but is not limited to,
” the parties create a “virtual carte blanche . .
. to seal whatever portions of the record the party wanted to
seal, ” as the proposed order is not limited to the
discovery phase of the proceedings. Cincinnati Ins.
Co., 178 F.3d. at 944. The Seventh Circuit
Court of Appeals has held that such overly broad protective
orders are invalid. See Id. at 945.
not all of the proposed categories constitute narrow,
demarcated categories of legitimately confidential
information. See, e.g., Filter Specialists, Inc.
v. Hendi, No. 3:08-cv-365, 2008 WL 4367594, at *2 (N.D.
Ind. Sept. 17, 2008) (rejecting the parties' proposed
categories of “proprietary, confidential, or of a
commercially sensitive nature, ” explaining that
“[f]or the proposed document to comport with circuit
precedent and the Federal Rules, the parties need to limit
this language of the order to a more ascertainable standard
to prevent a blanket protective order”). For example,
“not all information in an employee's personnel
file is considered private.” Little v. Mitsubishi
Motor Mfg. of Am., Inc., No. 04-1034, 2006 WL 1554317,
at *4 (C.D. Ill. June 5, 2006). “[T]here is nothing
confidential about an employee's job title, job
description, hiring date, or work assignment and
location.” Id.; see also Smith v. City of
Chi., No. 04 C 2710, 2005 WL 3215572, at *2 (N.D. Ill.
2005). Therefore, the categories of “employee
information” and “personnel records” as
written are overbroad. As such, the Court is not satisfied
that the parties know what information constitutes
“confidential” material. See Cincinnati Ins.
Co., 178 F.3d at 946.
problem is that the proposed order should seek to narrowly
protect any confidential material through a method of
redaction, rather than allowing documents that
“contain” confidential material to be filed
entirely under seal. (DE ¶ 1(B)); see Cincinnati
Ins. Co., 178 F.3d at 945 (stating that an order sealing
documents containing confidential information is overly broad
because a document containing confidential information may
also contain material that is not confidential, in which case
a party's interest in maintaining the confidential
information would be adequately protected by redacting only
portions of the document). The proposed order should require
the public filing of a redacted version of the document (in
which only the actual confidential material is redacted) when
an unredacted version is filed under seal.
the Seventh Circuit has made it clear that a protective order
must be “explicit that either party and any interested
member of the public can challenge the secreting of
particular documents.” Id. at 946. The instant
proposed order does not contain this language. It is
important to remember that “the public at large pays
for the courts and therefore has an interest in what goes on
at all stages of a judicial proceeding.” Id.
at 945 (citations omitted).
the Court DENIES the joint motion for approval of the
proposed stipulated protective order (DE 17). The parties may
submit a new motion, together with a revised proposed
protective order consistent with the requirements of Rule
26(c) and Seventh Circuit case law.
“[T]he same scrutiny is not
required for protective orders made only for discovery as for
those that permit sealed filings.” Containment
Techs. Grp., Inc. v. Am. Soc'y of Health Sys.
Pharmacists, No. 1:07-cv-997-DFH-TAB, 2008 WL 4545310,
at *3 (S.D. Ind. Oct. 10, 2008); see also Baxter
Int'l, Inc. v. Abbot Labs., 297 F.3d 544, 545 (7th
Cir. 2002) (“Secrecy is fine at the discovery stage,
before the material enters the judicial record. But those
documents, usually a small subset of all discovery, that
influence or underpin the judicial decision are open to
public inspection unless they meet the definition of trade
secrets or other categories of bona fide long-term