Confidentiality or Protective Orders 

A. Confidentiality Agreements Among Parties (No Court Order Necessary)

Parties may agree among themselves to limit disclosure of unfiled discovery information to certain specified persons during the litigation. 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 Orders Entered by the Court

If the parties seek a further protective order entered by the Court, they must base the proposed order on the model protective order approved by the full Court and set forth in the Local Rules: Form LR 26.2 Model Confidentiality Order.

Any changes to the model order that the parties propose must be shown by redlining that indicates both the deletions and additions to the model text. For the redlined version, counsel should also include brief comments with any proposed changes explaining why the changes are sought. Counsel shall email copies of the redlined version and the clean Word version of the proposed order to the Court’s proposed order inbox (Proposed_Order_Jantz@ilnd.uscourts.gov), with CC to counsel for all parties. The subject line of the e-mail must include the case number and name and the title of the proposed confidentiality/protective order.

Submitting a proposed order electronically is not a substitute for filing a motion. A proposed order may only be submitted after the corresponding motion has been filed unless the Court has given prior leave to submit a proposed order without a motion.

The Court’s issuance of a 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.

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 Jantz will enforce the practice of the referring District Judge. In consent cases, Judge Jantz will consider using the alternative options permitted by LR 26.2 in appropriate cases.

The Court generally will not approve the filing of entire pleadings or briefs under seal. Parties must arrive at the most limited sealing and redaction of documents consistent with their confidentiality obligations. 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.

In any case in which Judge Jantz permits a portion of a document to be filed under seal, the party filing the document must also file a public-record version that includes the entire filing except for the portions that are being filed under seal.

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