United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
Collins United States Magistrate Judge
the Court is stipulation filed by Plaintiffs and Defendant,
seeking the Court's approval and entry of a proposed
protective order agreed to by the parties pursuant to Federal
Rule of Civil Procedure 26(c). (DE 14). Because the terms of
the proposed protective order are inadequate in several ways,
the Court will not enter the proposed order.
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 material confidential if the
party maintains that information is “or contains, trade
secret, proprietary information, confidential commercial
information, financial and/or personal information, and/or
other confidential information . . . .” (DE 14 ¶
1). The Seventh Circuit Court of Appeals has repeatedly held
that categories such as “other confidential
information” are overly broad and render a protective
order invalid. See, e.g., Cincinnati Ins.
Co., 178 F.3d at 945. In that same vein, the category
“proprietary information, confidential commercial
information, [and] financial and/or personal
information” appear overly broad.
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).
as stated above, the proposed order allows documents that
contain Confidential Information to be filed entirely under
seal (DE 14 ¶¶ 1, 8), rather than solely protecting
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).
next problem in the proposed order is paragraph 8's
statement that the filing of any Confidential Information
with the Court “must be filed under seal by the filing
party with the Clerk of Court in [an] envelope marked
‘SEALED.'” (DE 14 ¶ 8). Local Rule
5-3(c)(1) states that “[t]o file a sealed document . .
. in a civil case, a party must file it electronically as
required by the CM/ECF User Manual.” N.D. Ind.
L.R. 5-3(c)(1). Thus, the Local Rules expressly require
sealed documents to be filed electronically. The parties
shall not file Confidential Information with the Court in
sealed envelopes or containers, which would be in
contravention of the Local Rules, without express permission
from the Court. See N.D. Ind. L.R. 1-1(c).
problem with the proposed order is that the parties'
process for the return and destruction of Confidential
Information does not provide an exception for the Court. (DE
14 ¶ 10). The Court does not return any documents that
have been made part of the record.
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.” Cincinnati Ins. Co.,
178 F.3d at 946. The instant proposed order, however, does
not contain this language. “[T]he public at large pays
for the courts and therefore has an interest in what goes on
at all stages of a judicial proceeding.” Id.
Paragraph 11 of the proposed order further states that
“[t]he parties to this agreement consent to the
jurisdiction of this Court over the parties hereto
indefinitely respecting any dispute.” (DE 14 ¶
11). The Court, however, is unwilling to enter a protective
order that suggests it retain jurisdiction of any kind after
resolution of the case. See E.E.O.C. v. Clarice's
Home Care Serv., Inc., No. 3:07-cv-601 GPM, 2008 WL
345588, at *2 (S.D. Ill. Feb. 7, 2008) (encouraging the
parties to make a contractual agreement among themselves for
the return of sensitive documents without court oversight);
see also Large v. Mobile Tool Int'l, Inc., No.
1:02-CV-177, 2010 WL 3120254, at *1 (N.D. Ind. Aug. 6, 2010).
these reasons, the Court DENIES the Stipulation and
Protective Order (DE 14) without prejudice. The parties may
submit a motion and attach a revised proposed
protective order consistent with the requirements of Rule
26(c) and Seventh Circuit case law.