United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
Collins, United States Magistrate Judge
the Court is the parties' Joint Motion for Entry of
Stipulated Protective Order (DE 36), seeking the approval of
a proposed agreed protective order (DE 36-1). Because the
proposed order is inadequate in several ways, the
parties' motion will be DENIED.
Rule of Civil Procedure Rule 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. 2001) (same).
the proposed order fails to set forth narrow, demarcated
categories of legitimately confidential information. It
allows a party to designate as “Confidential”
material that includes “proprietary information, . . .
information that is competitively sensitive, [and] commercial
or financial information that the party has maintained as
confidential[.]” (DE 36-1 ¶ 2(b)). However,
defining the term “Confidential” by using the
general terms of “confidential, ”
“commercially sensitive, ” or
“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
the proposed order enables a party to designate material as
Confidential if a party “in good faith deems that a
reasonable basis exists for limiting dissemination of
material . . . .” (DE 36-1 ¶ 2). However, the term
“in good faith” is a “fudge” phrase
that contributes to the vagueness of the proposed
order. See Cincinnati Ins. Co., 178 F.3d
at 944 (emphasizing that the word “believed”
incorporated into the phrase “believed to contain trade
secrets” is a “fudge”); Shepard v.
Humke, No. IP 01-1103-C-H/K, 2003 WL 1702256, at *1
(S.D. Ind. Mar. 28, 2003) (articulating that a party's
attempt to qualify a “fudge” word by the phrase
“in good faith” fails to sufficiently cure the
in the proposed order, a party's ability to designate
material as Confidential is “not limited to” the
demarcated categories. (DE 36-1 ¶ 2). In light of this
language, the Court is not satisfied that the parties know
what information constitutes confidential material. See
Cincinnati Ins. Co., 178 F.3d at 946. The
Seventh Circuit has repeatedly held that 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).
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.
to the extent that paragraphs 5 and 13 of the proposed
protective order may suggest that the Court will retain
jurisdiction over this matter after the termination of this
suit, (DE 36-1 ¶¶ 5, 13), the order be clarified to
reflect that the Court will not 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).
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.”
Cincinnati Ins. Co., 178 F.3d at 946. 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 omitted).
for the foregoing reasons, the Court DENIES the parties'
Joint Motion for Entry of Stipulated Protective Order. (DE
36). The parties may submit a revised stipulated 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