United States District Court, N.D. Indiana, Fort Wayne Division
WESTFIELD INSURANCE COMPANY, as subrogee of Green Valley Ranch, Plaintiff,
MUNTERS CORPORATION, Defendant.
OPINION AND ORDER
Collins United States Magistrate Judge
the Court is Defendant's unopposed motion for the entry
of an agreed protective order, filed on December 10, 2018.
(DE 38). Because the proposed order is inadequate,
Defendant's 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 “Confidential” any
material that a person “in good faith believes 
contain[s] trade secrets or nonpublic confidential
technical, commercial, financial, personal, or business
information.” (DE 38-2 ¶ A(1)). However, defining
the term “Confidential” by using the general
terms of “confidential, ” “non-public,
” “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
protective order”). Therefore, 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 Court of
Appeals 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).
does the addition 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, 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, 2003 WL 1702256, at *1(citing
Baxter Int'l, Inc., 297 F.3d at 547).
the proposed order enables a party to designate any material
as “Confidential” if a party “in good faith
believes” it to be confidential. (DE 38-2 ¶ A(1)).
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
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 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
to the extent that paragraph D 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
Defendant's unopposed motion for the entry of an agreed
protective order. (DE 38). 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