United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
Collins, United States Magistrate Judge
the Court is a Joint Motion for Protective Order (DE 14)
filed by the parties, seeking approval of a proposed joint
agreed protective order pursuant to Federal Rule of Civil
Procedure 26(c). Because the proposed order is overly broad,
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” any material that:
contains trade secrets or other non-public, highly sensitive
confidential research, development, technical, business
and/or financial information that has not become public
and/or is expressly kept secret/confidential from the general
public, the disclosure of which is likely to cause harm to
the competitive position of the producing party by allowing
competing entities to gain a competitive advantage.
(DE 14-1 ¶ 2). This definition does not propose 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”). 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.
does the incorporation of the term “non-public”
cure the problem. “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.” Cook, 206 F.R.D. at 249.
“They must describe a category or categories of
information and show that substantial privacy interests
outweigh the presumption of public access to discovery
material.” Id. For material to be protected,
it “must give the holder an economic advantage
and threaten a competitive injury-business
information whose release harms the holder only because the
information is embarrassing or reveals weaknesses does not
qualify for trade secret protection.” Id. at
248. “[M]erely asserting that a disclosure of the
information ‘could' harm a litigant's
competitive position is insufficient; the motion must explain
how.” Shepard v. Humke, IP 01-1103-C-H/K, 2003
WL 1702256, at *1 (S.D. Ind. Mar. 28, 2003) (citing
Baxter Int'l, Inc., 297 F.3d at 547).
public at large pays for the courts and therefore has an
interest in what goes on at all stages of a judicial
proceeding.” Cincinnati Ins. Co., 178 F.3d at
945 (citations omitted). Accordingly, a protective 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, 2003 WL 1702256, at *2.
the Court DENIES the Joint Motion for Protective Order (DE
14). 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
confidentiality.” (citations omitted)). Here, the
proposed order contemplates filings under seal (DE 14-1
¶ 28), and as such, it requires a higher level of
 The proposed order does go on to
describe more narrow, demarcated categories of documents that
“reveal the parties' financial health, customer
lists, data concerning customer purchasing needs, and pricing
information” (DE 14-1 ¶ 2); however, it does not
limit the ...