A.  Confidentiality Agreement Among the Parties (No Court Order Necessary): The parties 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. 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.

B.  Confidentiality/Protective Orders: If the parties require that a confidentiality order be entered by the Court, they must file a motion seeking such approval. The proposed agreed order should not be filed with the motion. Instead, the proposed order should be submitted to the Court’s Proposed Order email address: Proposed_Order_McNally@ilnd.uscourts.gov. The parties are directed to use the model confidentiality order approved by the full Court and set forth in the Local Rules: Form LR 26.2 Model Confidentiality Order. If the parties wish to deviate from the model order, they must accompany their proposed order along with a red-line document that shows deviations from the model 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 and that leave of Court must be obtained before any materials are filed under seal;

• 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.

Because of the serious potential impact on counsel’s ability to satisfy his or her ethical duties as set forth in the Rules of Professional Conduct, protective orders that include Attorney’s Eyes Only or Outside Counsel’s Eyes Only will come under particularly close scrutiny. A motion seeking approval of a protective order containing such terms must set forth the good faith basis for including these restrictions. In addition, the motion must be accompanied by a certification signed by all parties that they understand and consent to the proposed restriction on the scope of their counsel’s ability to discuss with them certain materials produced in the case.

The Court will review all proposed orders carefully before signing them. The Court’s issuance of a confidentiality order will constitute the determination, as required by Federal Rule of Civil Procedure 26(c), that then-existing good cause exists for the issuance of the order. This good cause determination may be subject to reconsideration if a party or interested member of the public moves for relief from the limitations of the confidentiality order.

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 McNally will enforce the practice of the referring district judge. In consent cases, Judge McNally will consider using the alternative option permitted by LR 26.2 in appropriate cases.

Leave to File Under Seal will only be granted if the moving party demonstrates good cause. The motion must include a specific description of each document or categories of documents that the party seeks to file under seal and an explanation of why confidentiality is necessary, including citations to supporting authority. The motion must also discuss the relevance of the information to the litigation.

The Court generally will not approve the filing of entire pleadings or briefs under seal. Instead, with rare exception, parties granted leave to seal will be expected to file public versions that simply redact the confidential information, along with a sealed version that does not include redactions.

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).

Sample HIPAA Qualified Protective Order