United States District Court, S.D. Indiana, Indianapolis Division
ORDER
DORIS
L. PRYOR, UNITED STATES MAGISTRATE JUDGE
This
matter comes before the Court on the Plaintiff's Motion
to Compel the Removal of Confidentiality Designation from
Specific Documents Under the Protective Order (Dkt.
220)[1]. The motion was referred to the
Undersigned for ruling and, for the reasons that follow, is
hereby GRANTED IN PART and DENIED IN
PART.
I.
Background
For the
purposes of this Order, the Court assumes familiarity with
the underlying facts of this case. On April 24, 2019, the
parties participated in a telephonic status conference with
the Undersigned. During this call, the Plaintiff expressed
concerns that the Defendants were improperly designating
certain documents as confidential, and the Defendants
expressed concerns that the Plaintiff was improperly
withholding certain documents from production. With the
discovery deadline fast approaching, the Court discussed an
expedited briefing schedule for the parties' imminent
motions to compel. The Plaintiff and Defendants filed their
respective Motions to Compel on April 26, 2019, their
responses on May 1, 2019, and their replies on May 3, 2019.
In the
Plaintiff's instant Motion to Compel, she requests that
the Court compel the Defendants to remove the confidential
designation from certain documents because, she argues, the
documents are not actually confidential. She also requests
her reasonable attorneys' fees for having to pursue this
motion. The Defendants' Motion to Compel [Dkt. 214] will
be discussed via separate order.
II.
Legal Standard
Even
when a governing protective order provides for
confidentiality of certain documents, the party who desires
the secrecy has the burden of continually showing “good
cause” to maintain such confidentiality when the
confidential nature of the information is challenged. In
re Bank One Sec. Litig., 222 F.R.D. 582, 586 (N.D. Ill.
2004) (citing Union Oil Co. of Cal. v. Leavell, 220
F.3d 562, 568 (7th Cir. 2000)). Establishing good cause
requires a party to present “a particular and specific
demonstration of fact, as distinguished from stereotyped and
conclusory statements.” Gulf Oil Co. v.
Bernard, 452 U.S. 89, 102 (1981).
If good
cause is shown, a court then must balance the public's
interest in access to the record against the interest of the
party seeking confidentiality to determine whether to seal
the record. In re Matter of Cont'l Ill. Secs.
Litig., 732 F.2d at 1313. If a party does not show good
cause to justify the ongoing concealment of certain
information, the protective order may be dissolved or
modified to unseal that information. Id.; see also
Jepson, Inc. v. Makita Elec. Works, 30 F.3d 854, 861
(7th Cir. 1994). If a party does identify specific genuine
confidential material within documents concealed by the
protective order, a court nevertheless may place the
documents in the public record following redaction of the
confidential material. Methodist Hosps., Inc. v.
Sullivan, 91 F.3d 1026, 1032 (7th Cir. 1996).
III.
Discussion
The
Court approved the parties' protective order on April 27,
2018. [Dkt. 97.] The protective order provides that
“[a]ny party or non-party who produces protected
information in this action may designate is at
“Confidential” consistent with the terms of this
Order.” [Dkt. 97 at 2.] The protective order also lays
out the process for challenging designated information as
follows:
In the event that a Receiving Party disagrees at any time
with any designation(s) made by the Designating Party, the
Receiving Party must first try to resolve such challenge in
good faith on an informal basis with the Designating Party
pursuant to S.D. Ind. L.R. 37-1. The Receiving Party must
provide written notice of the challenge and the grounds
therefor to the Designating Party, who must respond in
writing to the challenge within 15 days. At all times, the
Designating Party carries the burden of establishing the
propriety of the designation and protection level. Unless and
until the challenge is resolved by the parties or ruled upon
by the Court, the designated information will remain
protected under this Order.
Based
on the parties' briefing, the Plaintiff challenges the
confidential designation of three categories of documents: 1)
documents already produced in discovery without the
confidential designation; 2) documents authored by and in the
control of the Defendants; and 3) documents produced in the
Shana Taylor criminal matter. The Court will address each in
turn.
1)
Documents Already Produced
The
Plaintiff requests that the Court compel the Defendants to
remove the confidential designation from various documents
that were already produced in discovery in this case. The
Defendants claim that this is a “non-issue, ”
while the Plaintiff maintains that all documents that have
been produced should have the confidential designation
removed. This issue could have (and should have) been easily
resolved by the parties themselves, without court
intervention. Nevertheless, it is the Court's opinion
that any documents that were produced without a confidential
designation can be used in this litigation. Therefore, there
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