Lake Lite Inc v. Tommy Dock Products LLC, No. 1:2011cv00147 - Document 21 (N.D. Ind. 2011)
Court Description: OPINION AND ORDER DENYING 20 MOTION for Protective Order filed by Tommy Dock Products LLC. Signed by Magistrate Judge Roger B Cosbey on 10/17/11. (jcp)
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA FORT WAYNE DIVISION LAKE LITE, INC., Plaintiff, v. TOMMY DOCK PRODUCTS, LLC, Defendant. ) ) ) ) ) ) ) ) ) CAUSE NO. 1:11-CV-147 OPINION AND ORDER Before the Court is an agreed motion by the parties seeking approval of a proposed protective order pursuant to Federal Rule of Civil Procedure 26(c). (Docket # 20.) As the proposed order contains numerous deficiencies, it will be DENIED. First, the proposed order, which extends beyond the discovery phase of the proceedings, fails to definitively and narrowly define Confidential information. Instead, it conclusorily represents that discovery . . . may call for the production of materials containing confidential and proprietary business, technical and other commercially sensitive information, and/or personal third-party information and that a party may in good faith mark such information Confidential. (Proposed Stipulated Protective Order 1.) A protective order, however, must extend only to properly demarcated categor[ies] of legitimately confidential information. Citizens First Nat l Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 946 (7th Cir. 1999) (noting that a broad protective order granting carte blanche discretion to a party is invalid); see also MRS Invs. v. Meridian Sports, Inc., No. IP 99-1954-C-F/M, 2002 WL 193140, at *1 (S.D. Ind. Feb. 6, 2002) (rejecting proposed protective order because categories of protected information were overly broad and vague); Cook Inc. v. Boston Scientific Corp., 206 F.R.D. 244, 248-49 (S.D. Ind. 2001); Andrew Corp. v. Rossi, 180 F.R.D. 338, 342 (N.D. Ill. 1998). Furthermore, the proposed order makes no effort to explain why the material it seeks to protect is confidential. [M]erely asserting that a disclosure of the information could harm a litigant s competitive position is insufficient; the motion must explain how. Shepard v. Humke, IP 01-1103-C-H/K, 2003 WL 1702256, at *1 (S.D. Ind. March 28, 2003) (citing Baxter Int l, Inc. v. Abbott Labs., 297 F.3d 544, 547 (7th Cir. 2002)). Moreover, the proposed order should seek to narrowly protect any confidential material through a method of redaction. Cincinnati Insurance, 178 F.3d at 945 (stating that an order sealing documents containing confidential information is overly broad because a document containing confidential information may also contain material that is not confidential, in which case a party s interest in maintaining the confidential information would be adequately protected by redacting only portions of the document). The proposed order should provide for the contemporaneous public filing of a redacted version of the document (in which only the actual confidential material is redacted) when an unredacted version is filed under seal. Finally, the proposed order states that the Court shall retain jurisdiction of this lawsuit for the enforcement of this Protective Order. (Proposed Stipulated Protective Order 9.) However, [t]he Court is unwilling to enter a protective order that requires the Court to retain jurisdiction of any kind after the resolution of the case. E.E.O.C. v. Clarice s Home Care Serv., Inc., No. 3:07-cv-601 GPM, 2008 WL 345588, at *2 (S.D. Ill. Feb. 7, 2008) (encouraging the 2 parties to make a contractual agreement among themselves for the return of sensitive documents without court oversight); see also Large v. Mobile Tool Int l, Inc., No. 1:02-CV-177, 2010 WL 3120254, at *1 (N.D. Ind. Aug. 6, 2010). It is important to remember that the public at large pays for the courts and therefore has an interest in what goes on at all stages of a judicial proceeding. Cincinnati Insurance, 178 F.3d at 945-46 (noting that a broad protective order granting carte blanche discretion to a party is invalid). The Seventh Circuit Court of Appeals has insisted that litigation be conducted in public to the maximum extent consistent with respecting trade secrets, the identities of undercover agents, and other facts that should be held in confidence. Hicklin Eng g, L.C. v. Bartell, 439 F.3d 346, 348 (7th Cir. 2006). That is, [w]hat happens in federal courts is presumptively open to public scrutiny. Id. People who want secrecy should opt for arbitration. When they call on the courts, they must accept the openness that goes with subsidized dispute resolution by public (and publicly accountable) officials. Judicial proceedings are public rather than private property . . . . Union Oil Co. of Ca. v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000). Obtaining a protective order in an appropriate case need not be a[n] onerous task. But such an order may not issue absent an appropriate showing of good cause, as well as adherence to the other limitations the Seventh Circuit has emphasized apply to such orders. Shepard, 2003 WL 1702256, at *2. Of course, the parties may submit a revised protective order consistent with the requirements of Federal Rule of Civil Procedure 26(c)(7) and Seventh Circuit case law, but what has been submitted thus far is inadequate. For these reasons, the Court hereby DENIES approval 3 of the proposed agreed protective order submitted by the parties (Docket # 20). SO ORDERED. Enter for this 17th day of October, 2011. S/ Roger B. Cosbey Roger B. Cosbey, United States Magistrate Judge 4
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