United States District Court, N.D. Indiana, Fort Wayne Division
LERITHEA ROLAN, individually and on behalf of all others similarly situated, et al., Plaintiffs,
ATLANTIC RICHFIELD COMPANY, et al., Defendants.
OPINION AND ORDER
Collins United States Magistrate Judge
the Court is the parties' Joint Motion for Protective
Order (DE 114), seeking the approval of a proposed agreed
protective order (DE 114-1). Because the proposed order is
inadequate in several ways, the parties' motion will be
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)
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 “protected information such
as trade secrets, non-public research and development,
and commercial or financial information.” (DE 114-1 at
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; 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”). The Seventh Circuit has repeatedly
held that 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).
as stated above, the proposed order allows documents that
contain “protected information” to be filed
entirely under seal (DE 114-1 at 11), rather than solely
protecting the 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).
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.” Id. at
946. The 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 judicial proceedings.” Id. at 945. 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
the introduction to the proposed order states that any person
subject to the Order “will adhere to the following
terms or face contempt sanctions” for not adhering to
its terms. (DE 114-1 at 1). The Court is unwilling to adopt
this harsh language. Rather, a proposed order more
appropriately provides that a violation of the order
“may subject the disclosing person or party to
sanctions.” Finally, to the extent that page 11 of the
proposed order may suggest that the Court will retain
jurisdiction over this matter after the termination of this
suit, 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).
for the foregoing reasons, the Court DENIES the parties'
Joint Motion for Protective Order. (DE 114). The parties may
submit a revised stipulated protective order consistent with
the requirements of Rule 26(c), this Opinion and Order, 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