Before requesting entry of a protective order to preserve the confidentiality of materials disclosed in discovery, counsel shall carefully review the following:

1. Fed. R. Civ. P. 26(c), L.R. 26.2, and Form L.R. 26.2;
 
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 preparing a protective order, the parties should refer to General Order 12-0018 (Model Confidentiality Order).  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 Judge Cummings' Proposed Order email address (see submitting a Proposed Order, Agreed or Otherwise, for Electronic Entry by the Judge).

All proposed protective orders, even if agreed, must comply with the requirements set forth by the Seventh Circuit.  Specifically, all protective orders must include, inter alia, a carefully-drafted definition of the materials to be protected, with an explanation of why these documents are entitled to protection, consistent with the Seventh Circuit’s descriptions of what is protectable; and an explicit procedure under which a party or interested member of the public can challenge the confidential designation of particular documents.

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. 

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.

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