United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
Collins, United States Magistrate Judge
the Court is a Motion Requesting Approval and Entry of
Parties' Agreed Protective Order (DE 15), seeking entry
of a proposed stipulated protective order pursuant to Federal
Rule of Civil Procedure 26(c). Because the proposed order is
deficient in several ways, 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 fails to set forth narrow, demarcated
categories of legitimately confidential
information. Instead it allows a party to designate as
“Confidential Information” any documents
“referring or related to confidential and proprietary
human resources or business information . . . or
Defendant's organizational structure, ” and
“[a]ny documents from the personnel . . . file of any .
. . employees or contractors.” (DE 15-1 ¶ 2).
Additionally, the proposed order allows a party to designate
as “Attorneys' Eyes Only” “[a]ny
documents containing . . . nonpublic research and development
data, . . . confidential business information not generally
known to the general public, and customer-related
information.” (DE 15-1 ¶ 3).
begin, defining the term “Confidential
Information” by using the general terms of
“confidential and proprietary” is rather vague.
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”). Additionally,
the term “‘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.” Cook,
Inc., 206 F.R.D. at 248. Furthermore, “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). The Seventh Circuit has
repeatedly held that such overly broad protective orders are
invalid. See, e.g., Cincinnati Ins. Co., 178 F.3d at
945 (noting that a broad protective order granting carte
blanche discretion to a party is invalid).
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, Inc., 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. Accordingly,
“merely 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).
problem is that paragraphs 2 and 3 of the proposed order
allow documents “referring to or related to, ” or
documents “containing, ” confidential information
to be filed under seal, rather than protecting just the
actual confidential information through redaction. 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). While
paragraph 11 does contemplate the filing of redacted
documents, this method for redaction appears optional for the
parties, rather than mandatory. Moreover, when redacted
documents are filed with the Court, the unredacted versions
of the documents should also be filed under seal.
another problem is that the parties' process for the
return and destruction of confidential information, which is
set forth in paragraph 13 of the proposed order, does not
provide an exception for the Court. The Court does not return
any documents that have been made part of the record.
paragraph 14(g) of the proposed order provides the parties
may “submit Protected Documents to the Court under seal
for a determination of the claim of privilege or other
protection.” While a party may file a motion seeking an
in camera review of documents should circumstances
warrant it, the Court is unwilling to adopt a provision that
suggests the Court will provide an in camera review
as a matter of course pursuant to the terms of a stipulated
the Seventh Circuit Court of Appeals 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.” Cincinnati Ins.
Co., 178 F.3d 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 Seventh Circuit has “insisted that litigation be
conducted in public to the maximum extent consistent with
respecting trade secrets, the identities of undercover
agents, and other facts that should be held in
confidence.” Hicklin Eng'g, L.C. v.
Bartell, 439 F.3d 346, 348 (7th Cir. 2006) (citations
foregoing reasons, the Court DENIES the Motion Requesting
Approval and Entry of Parties' Agreed Protective Order
(DE 15), with leave to refile.