Confidentiality Agreements and Protective Orders
A. Confidentiality Agreements
The parties may agree on their own to limit disclosure of unfiled discovery information to particular individuals during the litigation and not to disseminate such information to other persons. A confidentiality agreement will 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 in order to execute such an agreement. However, a confidentiality agreement between the parties is not binding on the court if a non-party seeks access to and use of unfiled discovery materials at any future time. See Wilk v. AMA , 635 F.2d 1295 (7 Cir. th 1981); American Telephone and Telegraph Co. v. Grady , 594 F.2d 594 (7 th Cir. 1978) (protective orders may be subject to modification in response to a nonparty’s request for access to protected materials). The court must address such requests on a case-by-case basis.
B. Protective Orders
If the parties cannot agree on a confidentiality agreement, the party seeking a nondissemination provision may file a motion showing good cause for a protective order. Before moving for a protective order to preserve the confidentiality of materials disclosed in discovery, or filing a confidential document under seal, counsel should review the following items:
1. Fed. R. Civ. P. 26(c) and L.R. 26.2;
2. Jepson, Inc. v. Makita Electric Works , Ltd, 30 F.3d 854 (7 Cir. th 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
3. In referral cases, the assigned District Judge’s standing order or instructions 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.
The court will not enter a protective order, even if agreed, that does not comply with the requirements set out by the Seventh Circuit and, for referral cases, the assigned District Judge. If the protective order anticipates that any documents or confidential materials submitted to the court are to be filed under seal, the proposed protective order must include the following:
1. A 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 why confidentiality is necessary as to each category;
2. 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 and showing good cause for sealing that particular document;
3. A procedure for the use of confidential documents at the depositions of witnesses and a listing of the persons authorized to have access to confidential materials;
4. A provision that parties are ordered to retain copies of all documents containing confidential information which are provided under the protective order;
5. 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);
6. 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
7. Instructions for the disposition of the documents designated as confidential following the conclusion of the case.
In addition to the foregoing required information, the parties should also anticipate possible areas of future dispute and address them in the proposed order.
C. Dealing with Confidential Documents in Court Filings
First, pursuant to amended Local Rule 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 the court 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 court follows the second option in consent cases. In referral cases, the court will follow the referring District Judge’s preference, if any.
The two options are as follows:
1. 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 court 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: (a) the identity of the persons, if any, who are to have access to the confidential materials without further order of court; and (b) instructions for the disposition of the restricted documents following the conclusion of the case. See L.R. 26.2(b) .
2. 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. In addition, the producing party must maintain the original documents intact for any further review. See L.R. 26.2(d) .
D. Use of Medical Records in Litigation
The Health Insurance Portability and Accountability Act of 1996 and its regulations govern the procedures 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. See 45 C.F.R. § 164.512(e)(1)(v).
Sample Qualified Protective Order
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