United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
Collins United States Magistrate Judge
the Court is Defendant's “Unopposed Motion for
Entry of Stipulated Protective Order.” (DE 13). 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 “Confidential” any
material that a person believes “in good faith”
contains “sensitive personal information, trade secrets
or other confidential research, development, or commercial
information which is in fact confidential.” (DE 13-1
¶ 1(a)). However, defining the term
“Confidential” by using the general terms of
“sensitive” and “confidential” 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).
the proposed order enables a party to designate any material
as “Confidential” if a party “in good faith
believes” it to be confidential. (DE 13-1 ¶ 1(a)).
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
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 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
another problem is that the parties' process for the
return and destruction of confidential information, which is
set forth in paragraph five of the proposed order, states
that “the Court may return to counsel for the parties
or destroy, any sealed material at the end of the litigation
. . . .” The Court does not return any documents that
have been made part of the record.
to the extent that paragraph five 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 Defendant's
unopposed motion for the entry of a proposed protective
order. (DE 13). The parties may submit a revised proposed
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