GUIDELINES FOR PROPOSED PROTECTIVE ORDERS
SUBMITTED TO JUDGE FASHING
Procedure for Requesting Entry of a Protective Order
1. Stipulated Protective Orders
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 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 e-mail 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.
2. Opposed Protective Orders
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.
Judge Fashing’s guidelines for proposed protective orders
The following guidelines have been developed to assist the parties in drafting stipulated
protective orders.
1
1. Recitation of Facts Showing Good Cause Under Fed. R. Civ. P. 26(c)
Any proposed protective order must include a concise but sufficiently specific recitation
of the particular facts that, according to the parties, provide the Court with an adequate basis on
which to find good cause to issue the order pursuant to Federal Rule of Civil Procedure 26(c).
2. Scope of the Protective Order
The scope of the protective order must be narrowly tailored and specific. It should
include a clear and precise description of the categories of documents, information, items, or
materials (including electronically created or stored information) that are subject to the protective
order, such as “medical records,” “personnel files,” or “tax returns.” Categories such as “all
documents a party designates as confidential” or “all business records” are vague and overbroad.
The 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. The
protective order should explicitly exempt information or documents that are available to the
public or have not previously been kept in a confidential manner.
3. Provisions for Filing Documents Containing Confidential Information Under
Seal
The protective order should not contain a blanket provision that requires or allows the
parties to file documents containing confidential information under seal without the Court’s
approval. As a public forum, the Court’s policy is to provide the public with access to filed
documents to the fullest extent possible consistent with the law and the parties’ rights to
confidentiality and privacy. Where the sealing of documents is not explicitly mandated by law
or regulation (e.g., False Claims Act complaints), 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. The mere designation of information as confidential pursuant to a protective order
2
may not be sufficient to satisfy the Court’s requirements for filing under seal in light of the
public’s presumptive right of access to the Court’s dockets. Rather, 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. In accordance with
this policy, a proposed protective order must include the following acknowledgement:
The parties acknowledge that this Order does not entitle them to seal all
confidential information filed with the Court.
In general, before filing a motion for leave to seal a document filed with the Court, the
parties should consider other steps to prevent the unnecessary disclosure of confidential
information in court filings, such as redacting confidential information from the document to be
filed. If the parties wish to include a provision for filing confidential materials under seal in the
proposed protective order, the following language generally would be acceptable:
In the event a party seeks to file any document containing Confidential Information
subject to protection under this Order with the Court, that party must take
appropriate action to insure that the document receives proper protection from public
disclosure, including: (a) filing a redacted document with the consent of the party
who designated the document as confidential; (b) where appropriate (e.g., in relation
to discovery and evidentiary motions), submitting the document solely for in camera
review; or, (c) when the preceding measures are inadequate, seeking leave to file the
document or portions thereof under seal by filing a written motion for leave to file
under seal. The submitting party may file a document designated as confidential
under this Order as a separate sealed exhibit before a sealing order is obtained.
However, contemporaneously with that filing, the party must file a motion for leave to
file the document under seal, identifying the party that has designated the material as
confidential (“the designating party”). If the party filing the document containing
confidential information is the designating party, the motion for leave to file under
seal should include a declaration identifying the confidential information contained
in the document and explaining why the document is sealable. If the party filing the
document is not the designating party, the designating party must file a declaration
identifying the confidential information contained in the document and stating
whether the designated material is sealable, and if so why, within fourteen (14) days
of the filing of the motion to file under seal. If the designating party does not file a
responsive declaration within the fourteen day time period, the submitting party may
file the document in the public record no earlier than four days, and no later than ten
days, after the motion is denied.
3
4. Introduction of Documents Containing Confidential Information into
Evidence
The 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. If the parties wish to include a provision regarding the use of
documents containing confidential information at hearings and trial, the following language
would generally be acceptable:
The terms of this protective order do not preclude, limit, restrict, or otherwise
apply to the use of documents at court proceedings. Subject to the Federal Rules
of Evidence, a confidential document may be offered into evidence at trial or any
court hearing, provided that the proponent of the evidence gives advance notice
to opposing counsel of the intended use of the confidential document as may be
required by a scheduling or other order. Any party may move the Court for an
order that the confidential document be received in camera or under other
conditions to prevent unnecessary disclosure. The Court will then determine
whether the proffered evidence should continue to be treated as a confidential
document and, if so, what protection(s) may be afforded to such information at
the trial or hearing.
5. Application to Non-Parties
The protective order should refrain from stating that it is binding on non-parties or that
the Court has jurisdiction over non-parties to enforce the protective order’s provisions. The
Court will not order a non-party to consent to the Court’s jurisdiction or to abide by the
protective order’s terms. The parties may 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 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 stipulate to or contest it.
4
6. Jurisdiction
Ordinarily the Court’s jurisdiction, including jurisdiction to enforce a protective order,
terminates upon final disposition of the case. While the protective order should not state that the
Court has continuing jurisdiction over the protective order, 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. If the protective order includes such a provision,
the parties may also include a provision allowing a party to seek leave to reopen the case to
enforce the protective order’s provisions.
7. Instructions to the Clerk of the Court
The protective order should not direct the Clerk of the Court to return or destroy
confidential documents that are filed in the case.
8. Court Personnel and Jurors
The protective order should neither state nor imply that it is binding on court personnel or
jurors. If the protective order would otherwise leave room for interpretation as to this point, it
should explicitly provide an exception for court personnel and jurors.
5
