A. Confidentiality Agreement Amongst the Parties
The parties may properly agree amongst 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 amongst the parties regarding the categories of the information they seek to protect from dissemination to persons not involved in the lawsuit will likely 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 regarding such an agreement. See Taffinger v. Bethlehem Steel Corp. , 2001 WL 1287625, at *3 (E.D. Pa. Oct. 24, 2001). A confidentiality agreement amongst the parties is not binding on the Court if, at any future time, a non-party seeks access to and use of unfiled discovery materials. See Wilk v. AMA , 635 F.2d 1295 (7 th Cir. 1981); American Telephone and Telegraph Co. v. Grady , 594 F.2d 594 (7 th Cir. 1978). The Court will handle any such requests on a case-by-case basis.
If the parties cannot agree on a confidentiality agreement amongst themselves, the party seeking a non-dissemination provision shall file a motion for protective order and must make a good cause showing for a protective order with a non-dissemination provision. Wauchop v. Domino’s Pizza, Inc. , 138 F.R.D. 539, 545 (N.D. Ind. 1991) (stating "the party seeking the protective order bears the burden of demonstrating good cause for the entry of a protective order with a non-dissemination provision.").
B. Protective Orders
Model Protective Order
All counsel requesting that Judge Cox enter a protective order to preserve the confidentiality of materials disclosed in discovery must adopt, in whole or in part, the Model Protective Order. The model protective order provides that counsel should include or delete language in brackets as necessary to the specific case. Any other changes to this model protective order must be shown by redlining that indicates both deletions and additions to the model text. For additional information on protective orders, counsel are also encouraged to carefully review the following:
- Fed. R. Civ. P. 26(c) and L.R. 26.2;
- 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
- In a case that is before Judge Cox 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.
Judge Cox will not enter a protective order, even if agreed, that is not the model protective order. The model protective order complies with the requirements set out by the Seventh Circuit, which include the following elements:
- 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;
- 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.
The foregoing are minimum requirements.
C. Dealing with Confidential Documents in Court Filings
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.
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:
- 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) .
- 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) .
Judge Cox follows the second procedure in consent cases.
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