Before requesting that Judge Brown enter a protective order to preserve the confidentiality of materials disclosed in discovery, or file a confidential document under seal, counsel shall carefully review the following:

1. Fed. R. Civ. P. 26(c) and L.R. 26.2;
2. The decisions of the Seventh Circuit in Jepson, Inc. v. Makita Electric Works, Ltd, 30 F.3d 854 (7th Cir. 1994), Citizens First Nat’l Bank v. Cincinnati Ins. Co., 178 F.3d 943 (7th Cir. 1999), and Union Oil Co. v. Leavell, 220 F.3d 562 (7th Cir. 2000); and
3. In a case that is before Judge Brown on referral for discovery supervision, any standing order or instructions from the District Judge regarding protective orders and restricting orders, including whether the District Judge requires that documents designated as confidential be filed under seal with the Clerk’s Office or submitted in chambers with a redacted copy to be filed with the Clerk’s Office.

PROTECTIVE ORDERS

Judge Brown will not enter a protective order, even if agreed, that does not comply with the requirements set out by the Seventh Circuit (and, for cases on referral, the assigned District Judge). If the protective order anticipates that any documents or confidential materials submitted to the court are to be filed under seal, the proposed protective order must include, at a minimum, the following:

• A carefully-drafted definition of the categories of documents or other materials to be protected (e.g., personnel files, medical information, personal identity information, trade secrets, confidential financial matters, etc.), with an explanation of why confidentiality is necessary as to each category, consistent with the Seventh Circuit's descriptions of what is protectable;
• A provision that no document may be filed under seal absent an order by the court granting a motion, filed and noticed for hearing prior to the due date of the particular filing, showing good cause for sealing that particular document or portion of document;
• A procedure for the use of confidential documents at the depositions of witnesses, and a listing of the persons who may be given access to confidential materials;
• A provision that parties are ordered to retain copies of all documents containing confidential information which are provided under the protective order;
• A provision stating that nothing in the order shall be construed to affect the admissibility of any document, material or information at any trial or hearing; any request for confidentiality, closure or sealing of any hearing or trial must be made to the judge then presiding;
• An explicit procedure under which a party or interested member of the public can challenge the confidential designation of particular documents that have been filed under seal; and
• Instructions for the disposition of the documents designated as confidential following the conclusion of the case.

Please note that any designation of materials as "confidential" must be made in good faith by counsel, not by the client, and each page of confidential material must be marked "confidential under protective order." 
The foregoing are minimum requirements. Counsel should, in addition, anticipate possible areas of future dispute and attempt to set out agreed procedures in advance to deal with them, appropriate to the nature of the case.

Counsel should be aware that amendments to Local Rule 26.2 in April 2006 changed certain aspects of the way documents designated as confidential must be dealt with in filings with the court.

First, pursuant to amended L.R. 26.2(b), no document may be filed under seal without a prior order of the court specifying the particular document or portion of a document to be filed under seal. This amendment changed the rule by making clear that only the particular document that has been previously determined by the court to be deserving of protection may be filed under seal, regardless of the existence of any protective order. Thus, parties are not to file briefs or compilations of exhibits as restricted or under seal unless the court has expressly so ordered, with respect to the particular briefs or exhibits. See Committee Comments to L.R. 26.2.

Second, pursuant to L.R. 26.2(c) and (d), the amended rule now offers Judges two options regarding how to handle documents designated as confidential when those documents are submitted for consideration in connection with a motion, brief or other matter. The two options are as follows:

1. Filing the confidential document with the Clerk’s Office. Under this option, the confidential documents must be filed with the Clerk’s Office, and each confidential document presented for filing must include a copy of a restricting order entered by the Judge for that specific document or portion of document. The attorney or party submitting the confidential document must file it in a sealed enclosure that conspicuously states on the face of the enclosure the attorney’s or party’s name and address, including email address if the attorney is registered as a Filing User of electronic case filing, the caption of the case, and the title of the document. See L.R. 26.2(c). The final paragraph of the restricting order shall provide: (1) the identity of the persons, if any, who are to have access to the confidential materials without further order of court; and (2) instructions for the disposition of the restricted documents following the conclusion of the case. See L.R. 26.2(b).
   
2. Submitting the confidential document in chambers and filing a redacted copy with the Clerk’s Office. Under this option, documents designated as confidential shall not be filed with the Clerk’s Office. Rather, any such documents requiring the court’s review shall be submitted to chambers in camera in a sealed envelope bearing the caption of the case, case number, the title of the motion or response to which the submitted confidential information pertains, and the name and telephone number of counsel submitting the documents. The producing party must file a redacted copy of all documents containing confidential information with the Clerk’s Office for the record. In addition, the producing party must maintain the original documents intact for any further review. See L.R. 26.2(d).

In consent cases, Judge Brown follows the second option discussed above, namely, that documents designated as confidential requiring the court’s review must be submitted in chambers, and a redacted copy must be filed with the Clerk’s Office. In referral cases, Judge Brown will enforce the practice of the referring District Judge. 

In a case that is on referral from a District Judge who follows the first option, counsel must use the following procedure:

If a party intends to file a motion or other paper with the court which contains information designated as confidential by the other party or a non-party pursuant to a protective order between the parties, the filing party shall give reasonable notice of that intention to the designating party. A party seeking to file its own confidential information under seal, or a designating party given notice that a party intends to file the designating party’s confidential information, shall file and notice for hearing a Motion to File Under Seal prior to the due date of the particular filing. The Motion shall be brought to the District Judge, not Judge Brown. The Motion to File Under Seal must demonstrate good cause by including a specific description of the document (or categories of documents) that the party seeks to file under seal and explaining why confidentiality is necessary, consistent with the Seventh Circuit’s descriptions of what is protectable. The movant’s counsel shall bring a copy of the document or documents to the hearing for examination by the court.