GUIDELINES FOR PROPOSED PROTECTIVE ORDERS
SUBMITTED TO JUDGE YARBROUGH
In certain cases, the parties may agree that discovery should be governed by a protective
order limiting the disclosure, use, and dissemination of confidential information. If all of the
parties agree concerning the need for a protective order and its scope and form, their counsel
should file a stipulated motion for protective order with the proposed protective order attached as
an exhibit to the motion. The parties must also email a copy of their proposed protective order
(in Word format) to
[email protected]. If the proposed protective order
is appropriate, the Court will sign and enter it. If it is not appropriate, the Court will, in its
discretion, deny the motion, notify counsel of any objectionable language or provisions, or
modify and enter a revised protective order.
If the parties disagree concerning the need for a protective order and/or its scope or form,
the party or parties seeking such an order should file an opposed motion for protective order with
the proposed protective order attached as an exhibit to the motion. Where there is an objection to
the scope or form of a proposed order, the party or parties opposing the motion shall, in their
written response to the motion, provide the Court with proposed language that would resolve
their specific objections to the order’s scope or form.
The following guidelines have been developed to assist the parties in drafting stipulated
protective orders.
A. Compliance with Fed. R. Civ. P. 26(c)
Ensure that the proposed protective order provides a sufficient basis for the Court to find
that good cause exists for the Court to enter the order pursuant to Federal Rule of Civil
Procedure 26(c).
B. Scope of the Protective Order
Ensure that the scope of the proposed protective order is narrowly tailored and specific.
The proposed protective order should clearly reflect that its provisions only apply to the named
categories of documents, information, items, or materials specifically set forth in the protective
order.
C. Provisions for Filing Documents Containing Confidential Information Under Seal
The proposed protective order shall not contain a blanket provision that requires or
allows the parties to file documents containing confidential information under seal without the
Court’s approval. In short, there is a strong presumption in favor of the public’s access to filed
documents. The mere designation of information as confidential pursuant to a protective order is
insufficient to overcome this presumption. Thus, where the sealing of documents is not explicitly
mandated by law or regulation, a document will only be sealed if the Court finds that there is
good cause to withhold the specific document in question from the public by sealing it. Where a
document containing information subject to a protective order is included in a pleading filed with
the Court, the party filing such pleading should also file a motion to seal the document.
D. Introduction of Documents Containing Confidential Information into Evidence
The proposed protective order should not attempt to limit the Court’s judgment or
discretion in any way regarding the treatment, handling, or admission of documents containing
confidential information at a hearing or trial.
E. Application to Non-Parties
The proposed protective order should not indicate that it necessarily binds non-parties or
that the Court necessarily has jurisdiction over non-parties to enforce the protective order’s
provisions. This is because the terms of a protective order are not automatically binding on non-
parties. The parties may, however, attach a form agreement to the proposed protective order and
a non-party may agree to be bound by the terms of the protective order by signing the agreement.
The protective order may also include provisions that protect confidential information,
documents and materials produced by a non-party or parties who are later added to the action.
F. Jurisdiction
The proposed protective order should not provide that the Court has continuing
jurisdiction over the protective order upon final disposition of the case. However, if the parties
agree to be bound by its terms after the litigation ends, the protective order may appropriately
state that its provisions will continue in force after the litigation terminates.
G. Instructions to the Clerk of the Court
The proposed protective order should not direct the Clerk of the Court to return or
destroy confidential documents that are filed in the case.
H. Court Personnel and Jurors
The proposed protective order should neither state nor imply that it is binding on court
personnel or jurors.
