A. Confidentiality Agreement Among the Parties (No Court Order is 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 Order Entered by the Court
If the parties require a protective order entered by the Court, they are encouraged to use the model protective 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, the Court requests that they redline additions and deletions. The Court recommends that, at a minimum, any protective order submitted for approval 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. See Local Rule 26.2.
- 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’s issuance of the protective 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 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
Please note that 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, Local Rule 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 Weisman will enforce the practice of the referring district judge. In consent cases, Judge Weisman will consider using the alternative option permitted by LR 26.2 in appropriate cases.
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); In the Matter of Grand Jury, 983 F.2d 74 (7th Cir. 1992). If material is to be filed under seal, the motion to seal must demonstrate good cause by including a specific description of each document or category of information to be sealed and explaining why confidentiality is necessary.
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. See 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). See Sample HIPAA Order