United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
Collins United States Magistrate Judge
the Court is the parties' proposed stipulated protective
order, which the Court deems to be a motion for entry of the
proposed stipulated protective order pursuant to Federal Rule
of Civil Procedure 26(c). (DE 28). Because the proposed
protective order is deficient in several ways, the Court will
deny the motion without prejudice.
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 defines “Confidential Materials” as:
[D]evelopment, competitive, proprietary or commercial
information, financial information, or corporate information
or policies that the designating party has kept secret from
their competitors and is not readily ascertainable by their
competitors[, ] . . . and other materials that contain
information which, if disclosed outside of this action, would
be oppressive or prejudicial to the producing party, or that
otherwise are entitled to protection under Rule 26(C) of the
Federal Rules of Civil Procedure or other applicable law,
regulation or rule.
(DE 28 ¶ 3). Categories such as “commercial
information, ” “confidential information, ”
“corporate information, ” or the equivalent are
overly broad and render a protective order invalid. See,
e.g., Cincinnati Ins. Co., 178 F.3d at 945.
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).
the proposed order allows documents “containing”
Confidential Materials to be filed entirely under seal (DE 28
¶ 7(g)), rather than solely protecting the actual
Confidential Materials 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).
problem is that paragraph 7(g) of the proposed order states
that the filing of any Confidential Materials with the Court
“shall be filed with the Clerk of Court only in a
sealed envelope . . . .” Local Rule 5-3(c)(1) states,
“[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 Materials with the Court in sealed envelopes,
which would be in contravention of the Local Rules, without
express permission from the Court. See N.D. Ind.
paragraphs 7(e) and 7(f) of the proposed order contemplate
that the Court may limit access to the courtroom whenever
Confidential Materials is introduced at a hearing, trial, or
other proceeding. But at this early juncture, the Court is
unwilling to suggest that it may limit access to any
courtroom proceeding. “[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.” Cincinnati
Ins. Co., 178 F.3d at 945.
the Seventh Circuit has made 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.” See Cincinnati Ins.
Co., 178 F.3d at 946. The instant proposed order,
however, does not contain this language.
while the proposed order does not expressly state that the
Court will retain jurisdiction over the protective order
after the termination of this action for the purpose of
dissolving, modifying, or enforcing the protective order
(see DE 18 Ex. A ¶ 9), the Court nevertheless
wants to be clear that it is unwilling to enter a protective
order that suggests it retain jurisdiction of any kind after
resolution of the case. See EEOC 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 parties' motion for
entry of the proposed stipulated protective order (DE 28)
without prejudice. The parties may submit a motion and a
revised proposed protective order consistent ...