A. Confidentiality Agreements Among the Parties (No Court Order Required)
The parties properly may 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. A confidentiality agreement among the parties regarding the categories of information they seek to protect from dissemination to persons not involved in the lawsuit likely will address most of the parties’ confidentiality concerns because only a small subset of all discovery is ever filed in the public court record or used during a court proceeding. There is no need for court approval or intervention if the parties enter into such an agreement. See Frupac Intern. Corp. v. M/V "CHUCABUCO", 1994 WL 269271 (E.D. Pa. June 15, 1994).
B. Confidentiality Order Entered by the Court
To the extent that the parties request that the Court sign and enter a protective order, they are encouraged to use the model confidentiality order adopted in this District as Form LR 26.2. To the extent the parties submit a confidentiality order that differs from the Court’s Model Confidentiality Order, they shall submit an original and red-lined version to Magistrate Judge Gilbert’s Proposed Order electronic filing box (see submitting a Proposed Order). Any protective order submitted to the Court for approval must, at a minimum, contain the following:
- a carefully-drafted definition of materials to be protected, that is consistent with the Seventh Circuit's description of what is protectable (e.g., "trade secrets," "medical information," "personal identity information");
- a statement that the designation of material as confidential reflects a good faith determination by counsel (not by the client) that the material falls within the definition of confidential materials under the protective order;
- an explicit statement of the right of a party or interested member of the public to challenge the confidential designation of particular documents that have been filed under seal, with the party asserting confidentiality having the burden of demonstrating the propriety of that designation;
- a listing of the persons who may have access to materials designated as confidential;
- a procedure for the use of confidential documents at depositions;
- a statement that the protective order does not, by itself, authorize the filing of any document under seal. Any party wishing to file a document under seal must file a motion seeking leave of court to do so.
- a statement providing that the order shall not be construed to govern or affect the admissibility or use of any confidential material at trial or hearing in open court, with any requests for confidentiality or sealing of any hearing or trial to be made to the judge presiding over that proceeding.
The Court will not include an express finding of good cause in protective orders. Instead, the Court will review proposed orders carefully before signing them. The Court’s issuance of the protective order will constitute the determination, as required by Fed. R. Civ. P. 26(c), that good cause exists for the issuance of the order. However, issuance of any protective 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 protective 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 of good cause as to the challenged document(s) in light of the facts then before the Court. See Jepsen, Inc. v. Makita Elec. Works, Ltd., 30 F.3d 854, 859 (7th Cir. 1994).
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 Gilbert will enforce the practice of the referring district judge. In consent cases, Judge Gilbert 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 necessary to discuss in detail confidential materials, if the Court approves the filing of a sealed supplement.
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).
Example of a HIPAA Protective Order