Before requesting that the Court enter a restricting order, commonly referred to as a protective order, to preserve the confidentiality of materials disclosed in discovery, or filing a confidential document under seal, counsel shall carefully review the following:
- Fed. R. Civ. P. 26(c);
- Local Rules 5.7, 5.8, and 26.2, as amended;
- 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 a case that is before the Court on referral for discovery supervision, any standing order or instructions from the District Judge regarding protective orders and restricting orders.
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 cases on referral, 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, at a minimum, the following:
- A carefully-drafted 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 of why confidentiality is necessary as to each category, consistent with the Seventh Circuit's descriptions of what is protectable;
- 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, showing good cause for sealing that particular document or portion of document;
- A procedure for the use of confidential documents at the depositions of witnesses, and a listing of the persons who may be given access to confidential materials;
- A provision that parties are ordered to retain copies of all documents containing confidential information which are provided under the protective order;
- 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;
- 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
- Instructions for the disposition of the documents designated as confidential following the conclusion of the case.
Please note that any designation of materials as Aconfidential@ must be made in good faith by counsel, not by the client, and each page of confidential material must be clearly marked Aconfidential,@ Aprotected,@ or otherwise restricted.
The foregoing are minimum requirements. Counsel should, in addition, anticipate possible areas of future dispute and attempt to set out agreed procedures in advance to deal with them, appropriate to the nature of the case.