A.  Confidentiality Agreement Amongst the Parties (No Court Order Necessary): The parties may properly agree among themselves to limit disclosure of unfiled discovery information to certain specified persons during the litigation and not to voluntarily disseminate such information to other persons. Court approval of such an agreement or a court order is not necessary. Such an agreement may well address most of the parties’ confidentiality concerns since only a small subset of discovery is typically ever filed in the public court record or used during a court proceeding.

B.  Confidentiality/Protective Orders: If the parties require a confidentiality order be entered by the Court, they are directed to use the model confidentiality order approved by the full Court and set forth in the Local Rules: Form LR 26.2 Model Confidentiality Order. While the parties may deviate from the model order, any additions and deletions are to be red-lined. A request for entry of an agreed confidentiality order should be submitted after a corresponding motion has been filed unless the Court has given prior leave to submit an agreed confidentiality order without a motion. An agreed confidentiality order should be sent to the Court's Proposed Order Box at Proposed_Order_HollebHotaling@ilnd.uscourts.gov. The parties are to submit BOTH a red-lined version and a clean version.

The Court’s issuance of a confidentiality order will constitute the determination, as required by Federal Rule of Civil Procedure 26(c), that good cause exists for the issuance of the order. However, issuance of any confidentiality order will not be given preclusive effect as a determination of good cause for Rule 26(c) purposes if, at a future time, a party or an interested member of the public moves for relief from the limitations of the confidentiality order. In the event of such a motion, the Court will engage in an appropriate assessment of the interest between privacy and public access to make a determination as to the confidentiality of the challenged document(s) in light of the facts then before the Court.

C.  Filing Material Under Seal: Under Local Rule 26.2, no documents may be filed under seal without a prior order of the Court specifying the particular document to be filed. As an alternative to filing under seal, LR 26.2 allows individual judges, at their discretion, to order parties to retain copies of confidential documents in lieu of filing them with the Clerk of Court, to file a redacted copy with the Clerk of Court, and to provide the judge with a complete copy for in camera use. In referral cases, Judge Holleb Hotaling will enforce the practice of the referring district judge. In consent cases, Judge Holleb Hotaling will consider using the alternative option permitted by LR 26.2 in appropriate cases.

If documents are to be filed under seal, the Motion to File Under Seal must demonstrate good cause by including a specific description of each document or categories of documents that the party seeks to file under seal and explaining why confidentiality is necessary, including citations to supporting authority. The motion shall also discuss the relevance of the information to the litigation. Information important to the litigation is less likely to be subject to confidentiality restrictions. See Baxter Intern., Inc. v. Abbott Laboratories, 297 F.3d 544, 546 (7th Cir. 2002) (stating “very few categories of documents are kept confidential once their bearing on the merits of a suit has been revealed.”); Union Oil Co. of California v. Leavell, 220 F.3d 562, 567 (7th Cir. 2000) (recognizing that an executive’s salary would not be entitled to confidential treatment “if a dispute erupted about payment (or termination).”)

The Court generally will not approve the filing of entire pleadings or briefs under seal. See Pepsico, Inc.v. Redmond, 46 F.3d 29 (7th Cir. 1995) and In the Matter of Grand Jury, 983 F.2d 74 (7th Cir. 1992). Parties must file public pleadings and briefs but may file sealed supplements, if approved by the Court and if necessary to discuss in detail confidential materials.

D.  Use of Medical Records in Litigation: The Court reminds counsel that the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and its regulations create a procedure for obtaining authority to use medical records in litigation, including requesting a qualified protective order. 45 C.F. R. § 164.512(e). A “qualified protective order” means an order that: (1) prohibits the parties from using or disclosing the protected health information for any purpose other than the litigation for which such information was requested and (2) requires the return to the covered entity or destruction of the protected health information (including all copies made) at the end of the litigation. 45 C.F.R. § 164.512(e)(1)(v).

 HIPPA Sample Qualified Protective Order