Whenever parties are contemplating their entry into a protective order that includes the possibility that documents that are designated as "Confidential" or that are otherwise subject to limited disclosure ("restricted documents" within the meaning of this District Court's LR 26.2(a)) may be filed in court, three special provisions must be included:

1. No filing under seal, or any other designation as a restricted document, is to be permitted without previously-obtained court approval (see Citizens First Nat'l Bank v. Cincinnati Ins. Co., 178 F.3d 943 (7th Cir. 1999)).

2. After the case is closed in the District Court (this requirement differs from LR 26.2(g), which speaks of the case's "final disposition including appeals"), the parties may obtain the return of any previously-sealed or previously-restricted paper documents by a motion filed within a specified time period after the case is closed. Counsel are free to agree on that specified time period, but they should not designate more than a 63-day period. Any paper documents that are not so withdrawn will become part of the public case file, and the protective order must so provide.

3. If the protective order contains any provision that would permit its amendment by agreement of the parties without requiring court approval, that power of amendment cannot extend to the subjects covered in paragraphs 1 and 2.



4. On September 19, 2008 new Fed. R. Evid. ("Rule") 502 was signed into law. Among other things, the new Rule promulgated important changes in the law of waiver or forfeiture of attorney-client privileges and work product protection in the course of discovery. All counsel submitting or responding to proposed protective orders are urged to read Rule 502(d) - and particularly to read, and to consider incorporating, the model provisions suggested by Gregory Joseph in his article "Impact of Rule 502(d)" in the November 17, 2008 National Law Journal.