“Independent and careful evaluations of protective orders are especially important because ‘[t]he judge is the primary representative of the public interest in the judicial process . . . .’”
How later courts described this case
- “Independent and careful evaluations of protective orders are especially important because ‘[t]he judge is the primary representative of the public interest in the judicial process . . . .’”
- “In a case with thousands of documents, such a requirement might impose an excessive burden on the district judge or magistrate judge.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
LAMB PUBLICATIONS LLC, et al.,
Plaintiffs,
v. CASE NO. 3:19-CV-00686-RLM-MGG
OREGON CATHOLIC PRESS,
Defendants.
OPINION AND ORDER
The parties in this antitrust controversy disagree on which information should be
protected from public disclosure, both during and after this litigation, through a
protective order under Fed. R. Civ. P. 26(c). Specifically, they disagree on how to define
legitimate protected material, be it confidential or for attorneys’ eyes only (“AEO”), and
on the retention of documents following the litigation. As a result, they filed competing
motions proposing different versions of a protective order for the Court’s consideration.
Plaintiffs filed their Motion for a Protective Order on January 11, 2021. Defendant filed
its Cross-Motion for Protective Order on January 25, 2021. By February 8, 2021, both
motions were ripe, and Defendant had filed an amended version of its proposed order.
As discussed below, neither party’s proposed protective order meets the Seventh
Circuit’s standards for protective orders. Additionally, Defendant has not demonstrated
that the return or destruction of discovery materials that do not constitute work product
or were not filed during the course of litigation would present an undue burden or
expense worthy of exception under Fed. R. Civ. P. 26(c)(1).
I. APPLICABLE STANDARD
When granting a proposed protective order, this Court must independently
determine whether “good cause” exists to seal the requested information from the
public record. Fed. R. Civ. P. 26(c); Citizens First Nat’l Bank of Princeton v. Cincinnati Ins.
Co., 178 F.3d 943, 944 (7th Cir. 1999). In doing so, this Court must not grant parties carte
blanche to seal or protect whatever they desire. Citizens, 178 F.3d at 944; see also Pierson v.
Indianapolis Power & Light Co., 205 F.R.D. 646, 647 (S.D. Ind. 2002) (“Independent and
careful evaluations of protective orders are especially important because ‘[t]he judge is
the primary representative of the public interest in the judicial process . . . .’”) (quoting
Citizens, 178 F.3d at 945). In other words, this Court must not “rubber stamp” parties’
requests to seal public records, but it must review all requests to seal documents in light
of the public interest in the judicial process. Citizens, 178 F.3d at 945 (citing Matter of
Krynicki, 983 F.2d 74 (7th Cir. 1992)).
The court’s evaluation of proposed protective orders need not be made on a
document-by-document basis. Citizens, 178 F.3d at 946 (“In a case with thousands of
documents, such a requirement might impose an excessive burden on the district judge
or magistrate judge.”). However, the protective order must include terms that assure
the Court that the parties know what information will be sealed, “whether and under
what circumstances it may be sealed, or whether the parties will be making good faith
and accurate designations of information.” Pierson, 205 F.R.D. at 647. Therefore, before
granting a protective order, the Court must ensure that “(1) the information sought to
be protected falls within a legitimate category of confidential information, (2) the
information or category sought to be protected is properly described or demarcated, (3)
the parties know the defining elements of the applicable category of confidentiality and
will act in good faith in deciding which information qualifies thereunder, and (4) the
protective order explicitly allows any party and any interested member of the public to
challenge the sealing of particular documents.” Id. (citing Citizens, 178 F.3d at 946).
II. ANALYSIS
A. Protected Material: Confidential Information
Neither party’s proposed protective order describes or demarcates the
parameters of confidential information properly under the second Pierson requirement.
1. Plaintiffs’ Motion
In their Motion and proposed protective order, Plaintiffs demonstrate some
understanding of the Pierson requirements for protective orders as they delineate seven
categories of “Confidential Information.” [DE 48 at 6]. Despite this understanding, the
proposed order includes the following insufficient category: “(c) research, technical,
commercial, or financial information that the party has maintained as confidential.” Id.
This description reflects the language of Fed. R. Civ. P. 26(c)(1)(G) and is therefore
worthy of consideration for protection. However, the use of general terms and qualifiers
fails to instill confidence in the Court that parties will know how to properly designate
protected information. See Pierson, 205 F.R.D. at 647. Discrete closed categories of
information must be explicitly delineated to satisfy the Seventh Circuit’s requirements
for protective orders. Plaintiffs have not established good cause to justify protection of
information described in category (c) of their confidential information definition.
2. Defendant’s Cross Motion
Defendant’s proposed protective order similarly fails to define confidential
information with sufficient specificity, opting instead for overbroad catchall language.
In defining “Confidential Information,” Defendant starts with a general paragraph that
tracks the language of Fed. R. Civ. P. 26(c)(1)(G). [DE 50 at 5; DE 56 at 14]. Defendant
presumably recognized that this general description did not satisfy the specificity
requirements set forth in Citizens and Pierson as it then proceeded to identify five
examples of protected information that they expected to be produced in the course of
this litigation. [DE 50 at 5–6; DE 56 at 14–15]. Defendant defined two of the sample
categories as follows:
1. Any financial information and/or other confidential business
information of the designating party that is not generally available
to the public through prior publication or other lawful means;
2. Any contractual and/or licensing agreements, and the terms of any
contractual and/or licensing agreements, between the designating
party and any third party, which are not generally available to the
public through prior publication or other lawful means; . . . .
[DE 50 at 5; DE 56 at 14]. Defendant maintains that this information can be designated
as confidential “provided [that] the information was maintained as confidential and the
party has a legitimate interest in maintaining its confidentiality.” Id. While not
objectionable generally, the catchall nature of these two examples—and their reliance
on the general qualifier “any”—fails to assure the Court that the parties would be able
to accurately designate protected information within these two categories. See Pierson,
205 F.R.D. at 647.
Two other examples presented in Defendant’s proposed protective order are also
overbroad. Categories 3 and 4 are defined as follows:
3. Documents containing information the disclosure of which would
violate the terms of any protective orders, violate the terms of any
agreements entered into with third parties, or violate the
intellectual property, contractual, privacy, or other rights of third
parties;
4. Documents containing information the disclosure of which would
compromise the intellectual property, contractual, or privacy rights
of the designating party; . . . .
[DE 50 at 5–6; DE 56 at 14–15]. Once again, Defendant relies on the general qualifier
“any” and fails to offer sufficient specificity as to what could violate intellectual
property, contractual, or privacy rights of parties or non-parties.
Only Category 5, seeking protection of “[i]ndividually identifiable personnel
information of any employee of the designating party . . . .” as specified, is sufficiently
specific to meet the Seventh Circuit’s standard for protective orders. Thus, neither
party’s definition of “confidential information” establishes good cause for protection
from public disclosure as required by Citizens.
B. Protected Material: “Attorneys’ Eyes Only” Information
Neither the Motion nor the Cross Motion shows an adequate understanding of
the defining elements of AEO information, thus falling short of the third prong outlined
in Pierson.
1. Plaintiffs’ Motion
Plaintiffs’ proposed protective order does not clearly differentiate confidential
information from AEO information. The proposed protective order designates only one
type of information as AEO: “information that reveals trade secrets.” [DE 48 at 7]. This
Court has rejected, as insufficiently specific, a proposed protective order seeking to
protect “’Trade Secrets’ as defined in Indiana Code § 24-2-3-2 and Indiana case law.”
Directory Concepts, Inc. v. Fox, No. 1:08-CV-225, 2008 WL 5263386, at *3 (N.D. Ind. Dec.
16, 2008). Thus, Plaintiffs’ general description of trade secrets is arguably suspect on its
own. However, even if the Court was assured that the parties could independently
ascertain what constitutes a “trade secret” based on the applicable statute and case law,
Plaintiffs’ proposed protective order presents a separate problem. It designates
“information that reveals trade secrets” as both confidential and AEO without any
indication of what distinguishes the scope of one category from the other. [Compare DE
48 at 6, ¶ II.A(b), with DE 48 at 7, ¶ II.B]. Without such distinction, Plaintiffs’ proposed
protective order fails to assure the Court that the parties will know how, when, and
what to designate as deserving of the greater protection afforded by AEO designation.
See Pierson, 205 F.R.D. at 647.
2. Defendant’s Motion
In its proposed protective order, Defendant provides a general description of
AEO information and lists six categories of information to be designated as such. [See
DE 56 at 15–16]. In the general description, Defendant acknowledges that use of an AEO
designation should be infrequent and minimal while emphasizing its legitimate interest
in protecting information “that, if improperly disclosed to another party in this
litigation, could cause future business or financial harm to the Producing Party or a
third party.” [DE 56 at 15]. The six proposed categories of AEO information are
narrower. They reflect Defendant’s concern that a competitor would have an unfair
advantage if it had access to Defendant’s customer information; pricing information;
marketing, pricing, and/or business strategies; actual or projected financial
information; terms of agreements with composers or lyricists; or the terms of
intellectual property licensing agreements.
Defendant’s business concerns, however legitimate, do not establish good cause
to limit disclosure of these six categories of business information in this antitrust
lawsuit to attorneys’ eyes only. The information could be protected from public
disclosure as “confidential information” with terms in a protective order that prevent
misuse of the information beyond the scope of this litigation by the receiving party. Cf.
Cooper v. Rezutko, No. 3:17-CV-834-PPS-MGG, 2018 WL 8786749, at *2 (N.D. Ind. Sept. 5,
2018) (approving the category of “confidential medical information . . . not generally
available to the . . . public through prior publication or other lawful means” as
confidential but not AEO information in a proposed protective order). Without other
reasons, Defendant has not shown that good cause exists to designate these six
categories as AEO information only. Moreover, the prejudice to any receiving party if
prevented from viewing and evaluating this information for purposes of this lawsuit is
considerable and cannot be ignored.
C. Retention of Documents
Lastly, the parties’ proposed protective orders reflect their disagreement over
their obligations at the conclusion of litigation. Plaintiffs’ proposed protective order
adopts the language provided in the Protective Order Template available on the
undersigned’s website regarding the return or mutual destruction of confidential
information not entered into evidence or not filed with restriction as to disclosure.
[Compare DE 48 at 16, ¶ X.B, with Protective Order Template at
https://www.innd.uscourts.gov/judges-info/MGG]. Defendant proposes that outside
counsel of record “may retain Confidential or Attorneys’ Eyes Only Information in
counsel’s possession, custody, or control.” [DE 56 at 27]. In support, Defendant asserts
that locating and sorting confidential information in its computer systems would be
expensive and time-consuming. [DE 52 at 14].
Presumably, the cost and time associated with this activity amount to a burden
so great that, subject to Fed. R. Civ. P. 26(c)(1), this Court should accept Defendant’s
retention proposal. Yet while Defendant describes the steps involved in finding, sorting,
and destroying the relevant information, it does not provide any measurements that
capture or quantify the expense or burden to be incurred. Thus, Defendant has not
established that returning or destroying confidential and AEO information—a common
practice in litigation and Plaintiffs’ preferred approach to the handling of confidential
materials post-litigation—represents an undue expense or burden worthy of special
consideration in this protective order.
III. CONCLUSION
For the reasons outlined above, both proposed protective orders fail to properly
demarcate the scope of protected information as required under Seventh Circuit
precedent. Therefore, the Court DENIES the parties’ competing motions for a
protective order. [DE 48, DE 50]. The parties may file a joint motion for protective order
with a proposed protective order drafted in compliance with the guidance set forth in
this Opinion and Order. SO ENTERED this 23rd day of August 2021.
s/Michael. Gotsch, Sr.
Michael G. Gotsch, Sr.
United States Magistrate Judge