The Honorable Stephen R. Bough
United States District Court for the Western District of Missouri
AGREED PROTECTIVE ORDER GUIDELINES AND FORM
Procedure for Requesting Entry of an Agreed Protective Order
In certain cases, in the course of complying with Local Rule 16.1(d)(6), the parties may
agree discovery should be governed by a protective order limiting the disclosure, use, and
dissemination of confidential information. If the parties agree about the need for a protective
order and its scope and form, their counsel should confer and (1) file a joint motion for protective
order and 2) e-mail a copy of their jointly-proposed protective order (in MS Word format) to
Courtroom Deputy Tracey Peters at
[email protected]. If satisfactory, the court
will sign and enter the proposed protective order. If not satisfactory, the court will deny the
motion, notify counsel of any objectionable language or provisions, or modify and enter a
revised protective order. Counsel and all unrepresented parties submitting an agreed protective
order must affix their signatures. If the parties would like to designate any documents as attorney
eyes only, they must request a hearing by contacting the Courtroom Deputy Tracey Peters at
[email protected]. The court’s administrative procedures are available on the
court’s website at http://www.mow.uscourts.gov/district/rules. A model form protective
order is appended to this document, which is available on Judge Bough’s webpage at
http://www.mow.uscourts.gov/judges/bough.
Drafting Proposed Agreed Protective Orders
The following guidelines are designed to assist the parties in drafting stipulated or agreed
protective orders:
1. Recitation of Facts Showing Good Cause Under Fed. R. Civ. P. 26(c)
Any jointly-proposed protective order must include a concise but sufficiently specific
recitation of the particular facts in the case that would provide the court with an adequate basis
upon which to make the required finding of good cause pursuant to Fed. R. Civ. P. 26(c). See
also Gen. Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212 (8th Cir. 1973) (holding that
Rule 26(c) requires the proponent of a protective order “to show the necessity of its issuance,
which contemplates a particular and specific demonstration of fact, as distinguished from
stereotyped and conclusory statements”) (internal citation and quotation marks omitted).
2. Scope of the Protective Order
The protective order must be narrowly tailored and not overbroad. It must include a
sufficiently narrow identification of the categories of documents, information, items, or materials
(which may include electronically created or stored information) that are subject to the protective
order. Some examples are medical records, personnel files, and tax returns. Language such as
“this protective order shall apply to all documents the party designates as confidential” or “this
protective order shall apply to all business records” is too vague and overbroad. The protective
order must clearly reflect that its provisions only apply to the named categories of documents,
information, items, or materials specifically set forth in the protective order. The protective
order must not cover information or documents that are available to the public or that have not
been previously maintained in a confidential manner.
3. Provisions for Filing Documents Containing Confidential Information Under Seal
The protective order must not contain a blanket “filing under seal” provision that requires
or allows the parties to file documents containing confidential information under seal without the
court’s permission. If the parties wish to include a provision for filing confidential materials
under seal, then the protective order must state that the party seeking to file confidential
information must first file a motion with the court and be granted leave to file the particular
document under seal. See WESTERN DISTRICT OF MISSOURI, CM/ECF CIVIL AND CRIMINAL
ADMINISTRATIVE PROCEDURES MANUAL AND USER GUIDE 8 (rev. 2018) (setting forth the
procedure for requesting leave to file a document under seal),
https://www.mow.uscourts.gov/sites/mow/files/AdministrativeGuideandUserManual.pdf. The
mere designation of information as confidential pursuant to the parties’ protective order is
insufficient to satisfy the court’s requirements for filing it under seal in light of the public’s
qualified right of access to court dockets. See IDT Corp. v. eBay, 709 F.3d 1220, 1222 (8th Cir.
2013) (internal citations and quotation marks omitted) (holding that “[t]here is a common-law
right of access to judicial records,” which, while “not absolute,” “applies to judicial records in
civil proceedings”). Before filing a motion for leave to file under seal, the parties must consider
other steps to prevent the unnecessary disclosure of confidential information in court filings,
such as filing a redacted document or other means short of filing under seal.
4. Application to Non-Parties
The protective order must not state that it is binding on non-parties or that the court has
jurisdiction over non-parties to enforce the provisions of the protective order. The court cannot
order a non-party to abide by the terms of a protective order or to consent to jurisdiction.
Although the protective order itself must not order a non-party to abide by the terms of the
protective order, the parties may attach a form agreement to the proposed protective order. By
signing the agreement, the non-party may agree to be bound by the terms of the protective order.
The protective order may include provisions that protect confidential information, documents,
and materials produced by a non-party or parties who are later added to the action. Any new
party to the lawsuit must be given the opportunity to review the protective order and decide
whether to join it.
5. Jurisdiction
The protective order may state that the court’s jurisdiction to enforce its provisions
terminates on the final disposition of the case or that the protective order remains in force after
termination of the litigation. The parties may also include a provision in the protective order
that a party or any person with standing concerning the subject matter may seek leave to reopen
the case to enforce or modify the provisions of the protective order. See Flynt v. Lombardi, 782
F.3d 963, 966 n.2, 967 (8th Cir. 2015) (per curiam) (internal quotation marks omitted) (quoting
Pansy v. Borough of Stroudsburg, 23 F.3d 772, 777 (3d. Cir. 1994)) (citing Federal Rule of Civil
Procedure 24(b); United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir.
1990)) (holding that “[A] district court may properly consider a motion to intervene permissively
for the limited purpose of modifying a protective order even after the underlying dispute between
the parties has long been settled” and that “when a party is seeking to intervene only to modify a
protective order or unseal documents, and not to litigate a claim on the merits, an independent
basis of jurisdiction is not required”).
6. Instructions to the Clerk of the Court
The protective order must not direct the clerk of the court to return or destroy confidential
documents that are filed in the case. Such language conflicts with the policy of the clerk’s
office not to remove or destroy any documents filed in a case.
7. Court Personnel and Jury Members
The protective order must not state that it is binding on court personnel or members of the
jury.
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
DIVISION
, )
)
Plaintiff, )
)
vs. ) Case No. -SRB
)
, )
)
Defendant. )
)
)
PROTECTIVE ORDER
Before this Court is the parties’ [Joint Motion for Protective Order (Doc. # )]. The
parties agree during the course of discovery it may be necessary to disclose certain confidential
information relating to the subject matter of this action. They agree certain categories of such
information should be treated as confidential, protected from disclosure outside this litigation, and
used only for purposes of prosecuting or defending this action and any appeals. The parties jointly
request entry of a protective order to limit the disclosure, dissemination, and use of certain
identified categories of confidential information.
The parties assert in support of their request that protection of the identified categories of
confidential information is necessary because .
[The parties must provide a concise but sufficiently specific recitation of the
particular facts in the case that would warrant limiting disclosure and/or use of the
information to provide the Court a basis upon which to make the required finding
of good cause under Fed. R. Civ. P. 26(c).]
For good cause shown under Fed. R. Civ. P. 26(c), the Court grants the parties’ [joint
request] [Joint Motion for Protective Order (Doc. # )] and hereby enters the following
Protective Order:
1. Scope. All documents and materials produced in the course of discovery of this
case, including initial disclosures, responses to discovery requests, all deposition testimony and
exhibits, and information derived directly therefrom (hereinafter, collectively, “documents”), are
subject to this Order concerning Confidential Information as set forth below. As there is a
presumption in favor of open and public judicial proceedings in the federal courts, this Order will
be strictly construed in favor of public disclosure and open proceedings wherever possible.
2. Definition of Confidential Information. As used in this Order, “Confidential
Information” is defined as information that the producing party designates in good faith has been
previously maintained in a confidential manner and should be protected from disclosure and use
outside the litigation because its disclosure and use are restricted by statute or could potentially
cause harm to the interests of the disclosing party or nonparties. For purposes of this Order, the
parties will limit their designation of “Confidential Information” to the following categories of
information or documents:
[The parties must identify the specific and narrow categories of information they
seek to protect, such as medical records, personnel files, tax returns, financial
statements and records, proprietary business records, trade secrets, records whose
disclosure is restricted or prohibited by statute, etc.]
Information or documents that are available to the public may not be designated as Confidential
Information.
3. Form and Timing of Designation. The producing party may designate documents
as containing Confidential Information and therefore subject to protection under this Order by
marking or placing the words “CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER”
(hereinafter, “the marking”) on the document and on all copies in a manner that will not interfere
with the legibility of the document. As used in this Order, “copies” includes electronic
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images, duplicates, extracts, summaries, or descriptions that contain the Confidential Information.
The marking will be applied prior to or at the time the documents are produced or disclosed.
Applying the marking to a document does not mean that the document has any status or protection
by statute or otherwise except to the extent and for the purposes of this Order. Copies that are made
of any designated documents must also bear the marking, except that indices, electronic databases,
or lists of documents that do not contain substantial portions or images of the text of marked
documents and do not otherwise disclose the substance of the Confidential Information are not
required to be marked. By marking a designated document as confidential, the designating attorney
or party appearing pro se thereby certifies that the document contains Confidential Information as
defined in this Order.
4. Inadvertent Failure to Designate. Inadvertent failure to designate any document
or material as containing Confidential Information will not constitute a waiver of an otherwise
valid claim of confidentiality pursuant to this Order, so long as a claim of confidentiality is asserted
within [ days] after discovery of the inadvertent failure.
5. Depositions. Deposition testimony will be deemed confidential only if designated
as such when the deposition is taken or within a reasonable time after receipt of the deposition
transcript. Such designation must be specific as to the portions of the transcript and/or any exhibits
to be protected.
6. Protection of Confidential Material.
(a) General Protections. Designated Confidential Information must be used or
disclosed solely for purposes of prosecuting or defending this lawsuit, including any appeals [or
any other related legal proceeding brought by one of the parties to this litigation].
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(b) Who May View Designated Confidential Information. Except with the
prior written consent of the designating party or prior order of the Court, designated Confidential
Information may only be disclosed to the following persons:
[The parties must list to whom confidential information may be disclosed. The
following list contains commonly listed categories.]
(1) The parties to this litigation, including any employees, agents, and
representatives of the parties;1
(2) Counsel for the parties and employees and agents of counsel;
(3) The Court and Court personnel, including any special master
appointed by the Court, and members of the jury;
(4) Court reporters, recorders, and videographers engaged for deposi-
tions;
(5) Any mediator appointed by the Court or jointly selected by the
parties;
(6) Any expert witness, outside consultant, or investigator retained
specifically in connection with this litigation, but only after such
persons have completed the certification contained in Attachment A,
Acknowledgment and Agreement to be Bound;
(7) Any potential, anticipated, or actual fact witness and his or her coun-
sel, but only to the extent such confidential documents or
information will assist the witness in recalling, relating, or
explaining facts or in testifying, and only after such persons have
completed the certification contained in Attachment A;
(8) The author or recipient of the document (not including a person who
received the document in the course of the litigation);
1
If the confidential documents contain highly sensitive trade secrets or other highly sensitive competitive or
confidential information, and disclosure to another party would result in demonstrable harm to the disclosing party,
the parties may stipulate or move for the establishment of an additional category of protection (e.g., Attorneys’ Eyes
Only) that prohibits disclosure of such documents or information to that category or that limits disclosure only to
specifically designated in-house counsel or party representative(s) whose assistance is reasonably necessary to the
conduct of the litigation and who agree to be bound by the terms of the Order.
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(9) Independent providers of document reproduction, electronic discov-
ery, or other litigation services retained or employed specifically in
connection with this litigation; and
(10) Other persons only upon consent of the producing party and on such
conditions as the parties may agree.
(c) Control of Documents. The parties must take reasonable efforts to prevent
unauthorized or inadvertent disclosure of documents designated as containing Confidential
Information pursuant to the terms of this Order. Counsel for the parties must maintain a record of
those persons, including employees of counsel, who have reviewed or been given access to the
documents, along with the originals of the forms signed by those persons acknowledging their
obligations under this Order.
7. Filing of Confidential Information. If a party seeks to file any document
containing Confidential Information subject to protection under this Order, that party must take
appropriate action to ensure that the document receives proper protection from public disclosure,
such as: (a) filing a redacted document with the consent of the party who designated the document
as confidential; or (b) seeking permission to file the document under seal by filing a motion for
leave to file under seal. Nothing in this Order will be construed as a prior directive to allow any
document to be filed under seal. The mere designation of information as confidential pursuantto
this Order is insufficient to satisfy the Court’s requirements for filing under seal in light of the
public’s qualified right of access to court dockets. See IDT Corp. v. eBay, 709 F.3d 1220, 1222
(8th Cir. 2013). The parties understand that the requested documents may be filed under seal only
with the permission of the Court after proper motion. If the motion is granted and the requesting
party permitted to file the requested documents under seal, only counsel of record and
unrepresented parties with CM/ECF filing privileges will have access to the sealed documents.
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Pro hac vice attorneys must obtain sealed documents from local counsel.
8. Discovery Disputes; Challenges to a Confidential Designation. In the event of a
discovery dispute, no party may file a discovery motion before fully complying with Local Rule
37.1. Local Rule 37.1 also applies to any dispute on an objection to a confidential designation
under the terms of this Protective Order. The burden of proving the necessity of a confidentiality
designation remains with the party asserting confidentiality. Until the Court rules on the challenge,
all parties must continue to treat the materials as Confidential Information under the terms of this
Order.
9. Use of Confidential Documents or Information at Trial or Hearing. Nothing in
this Order will be construed to affect the use of any document, material, or information at any trial
or hearing. A party that intends to present or anticipates that another party may present Confidential
Information at a hearing or trial must bring that issue to the attention of the Court and the other
parties without disclosing the Confidential Information. The Court may thereafter make such
orders as are necessary to govern the use of such documents or information at the hearing or trial.
10. Obligations on Conclusion of Litigation.
(a) Order Remains in Effect. Unless otherwise agreed or ordered, all
provisions of this Order will remain in effect and continue to be binding after conclusion of the
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litigation.
(b) Return of Confidential Documents. Within days after this
litigation concludes by settlement, final judgment, or final order, including all appeals, all
documents designated as containing Confidential Information, including copies as defined above,
must be returned to the party who previously produced the document unless: (1) the document has
been offered into evidence or filed without restriction as to disclosure; (2) the parties agree to
destruction of the document to the extent practicable in lieu of return;2 or (3) as to documents
bearing the notations, summations, or other mental impressions of the receiving party, that party
elects to destroy the documents and certifies to the producing party that it has done so.
(c) Retention of Work Product. Notwithstanding the above requirements to
return or destroy documents, counsel may retain attorney work product, including an index which
refers or relates to designated Confidential Information, so long as that work product does not
duplicate verbatim substantial portions of the text or images of designated documents. This work
product will continue to be confidential under this Order. An attorney may use his or her own work
product in subsequent litigation provided that its use does not disclose Confidential Information.
11. Order Subject to Modification. This Order is subject to modification by the Court
on its own motion or on motion of any party or any other person with standing concerning the
subject matter. The Order must not, however, be modified until the parties have been given
2
The parties may choose to agree that the receiving party must destroy documents containing Confidential Information
and certify the fact of destruction, and that the receiving party is not required to locate, isolate, and return e-mails
(including attachments to e-mails) that may include Confidential Information, Confidential Information contained in
deposition transcripts, or Confidential Information contained in draft or final expert reports.
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notice and an opportunity to be heard on the proposed modification.
12. Enforcement of Protective Order. Even after the final disposition of this case, a
party or any other person with standing concerning the subject matter may file a motion to seek
leave to reopen the case for the limited purpose of enforcing or modifying the provisions of this
Order. See Flynt v. Lombardi, 782 F.3d 963, 966 n.2, 967 (8th Cir. 2015) (per curiam).
13. No Prior Judicial Determination. This Order is entered based on the
representations and agreements of the parties and for the purpose of facilitating discovery. Nothing
in this Order will be construed or presented as a judicial determination that any document or
material designated as Confidential Information by counsel or the parties is entitled to protection
under Fed. R. Civ. P. 26(c) or otherwise until such time as the Court may rule on a specific
document or issue.
14. Persons Bound by Protective Order. This Order will take effect when entered
and is binding upon all counsel of record and their law firms, the parties, and persons made subject
to this Order by its terms.
[OPTIONAL PROVISIONS. The following provisions are optional but may be
helpful to the parties:]
15. Applicability to Parties Later Joined. If additional persons or entities become
parties to this lawsuit, they must not be given access to any Confidential Information until they
execute and file their written agreement to be bound by the provisions of this Order.
16. Protections Extended to Third-Party’s Confidential Information. The parties
agree to extend the provisions of this Protective Order to Confidential Information produced in
this case by third parties, if timely requested by the third party.
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17. Confidential Information Subpoenaed or Ordered Produced in Other
Litigation. If a receiving party is served with a subpoena or an order issued in other litigation that
would compel disclosure of any material or document designated in this action as Confidential
Information, the receiving party must so notify the designating party, in writing, immediately and
in no event more than three business days after receiving the subpoena or order. Such notification
must include a copy of the subpoena or court order.
The receiving party also must immediately inform in writing the party who caused the
subpoena or order to issue in the other litigation that some or all of the material covered by the
subpoena or order is the subject of this Order and deliver a copy of this Order promptly to the party
in the other action that caused the subpoena to issue.
The purpose of imposing these duties is to alert the interested persons to the existence of
this Order and to afford the designating party in this case an opportunity to try to protect its
Confidential Information in the court from which the subpoena or order issued. The designating
party bears the burden and the expense of seeking protection in that court of its Confidential
Information, and nothing in these provisions should be construed as authorizing or encouraging a
receiving party in this action to disobey a lawful directive from another court. The obligations set
forth in this paragraph remain in effect while the party has in its possession, custody, or control
Confidential Information designated by the other party to this case.
18. Disclosure of Confidential Information Covered by Attorney-Client Privilege
or Work Product. Whether inadvertent or otherwise, the disclosure or production of any
information or document that is subject to an objection on the basis of attorney-client privilege or
work-product protection, including, but not limited to, information or documents that may be
9
considered Confidential Information under the Protective Order, will not be deemed to waive a
party’s claim to its privileged or protected nature or estop that party or the privilege holder from
designating the information or document as attorney-client privileged or subject to the work-
product doctrine at a later date. Any party receiving any such information or document must return
it upon request to the producing party. Upon receiving such a request as to specific information or
documents, the receiving party must return the information or documents to the producing party
within [ days], regardless of whether the receiving party agrees with the
claim of privilege and/or work-product protection. Disclosure of the information or document by
the other party prior to such later designation will not be deemed a violation of the provisions of
this Order. Although the provisions of this section constitute an order pursuant to Rule 502(d) and
(e) of the Federal Rules of Evidence, and will be construed in a manner consistent with the
maximum protection provided by said rule, nothing in this Order is intended or will be construed
to limit a party’s right to conduct a review of documents, including electronically-stored
information, for relevance, responsiveness, or segregation of privileged or protected information
before production.
IT IS SO ORDERED.
/s/ Stephen R. Bough
STEPHEN R. BOUGH
UNITED STATES DISTRICT JUDGE
Dated:
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[Delete signature blocks if not wholly by agreement]
WE SO MOVE WE SO MOVE
and agree to abide by the and agree to abide by the
terms of this Order terms of this Order
Signature Signature
Printed Name Printed Name
Counsel for: Counsel for:
Dated: Dated:
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ATTACHMENT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Protective Order dated
in the case captioned, , and attached
hereto, understands the terms thereof, and agrees to be bound by its terms. The undersigned
submits to the jurisdiction of the United States District Court for the Western District of Missouri
in matters relating to this Protective Order and understands that the terms of the Protective Order
obligate him/her to use materials designated as Confidential Information in accordance with the
order solely for the purposes of the above-captioned action, and not to disclose any such
Confidential Information to any other person, firm, or concern, except in accordance with the
provisions of the Protective Order.
The undersigned acknowledges that violation of the Protective Order may result in
penalties for contempt of court.
Name:
Job Title:
Employer:
Business Address:
Date:
Signature
