Title: Protecting and Enforcing Protective Orders: Easier Said Than Done: With Challenges, Even from Third Parties, Increasing, Counsel Must Carefully Consider How These Orders Are Drafted and Entered
Abstract: THE harsh truth is the era of broad, agreed-upon protective orders covering virtually every document is gone. Even the entry of a narrowly drawn protective order cover trade secrets and other confidential information does not guarantee those documents will be protected from dissemination for all time. orders increasingly are being challenged and modified or vacated during the course of litigation--even years after the underlying action is resolved. Still worse: it is easier for a third party attack and modify an existing protective order if the issuing court did not make the requisite findings of fact mandated in its jurisdiction. So what's a company do? What is the status of federal law on seeking and maintaining protective orders? What can counsel do in the preparation of a protective order anticipate and avoid future challenges? There are no guarantees in this area, but there are ways reduce the risk of attack and modification. THE STANDARD AND THE BALANCING ACT Under Rule 26(c) of the Federal Rules of Civil Procedure, Protective Orders, federal courts have the authority enter orders to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including under 26(c)(7) that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a designated way. The Comment b Section 757 of the Restatement of Torts definition of trade secret, which has been adopted by some federal courts, includes any formula, pattern, device, or compilation of information used in a business which gives the business an opportunity obtain an advantage over competitors. In seeking a protective order under Rule 26(c), a party must demonstrate justify the order. Good cause may be shown by establishing with specificity disclosure will work a clearly defined and serious injury the party seeking closure. In complex litigation involving large-scale discovery, however, the court may craft a broad umbrella protective order on a threshold showing of good cause, rather than requiring a showing of the specific harm threatened by disclosure. (1) In deciding whether good cause exists for a protective order at any stage of litigation, including settlement, federal courts generally balance the requesting party's need for information against the possible injury accompanying dissemination. Factors weighing in favor of the entry of an order include protecting privacy interests, encouraging settlement, avoiding production of information sought for improper purposes and preventing infliction of unnecessary or serious embarrassment, or, in the case of a corporation, monetary devastation. Circumstances weighing against protective orders exist where the information sought involves matters of health and safety or other issues of significant and legitimate concern. Similarly, where the party seeking the protective order is a entity or official rather than a private individual, justification for a protective order is less compelling due the public's countering interest. (2) It is the public mantra creates the greatest obstacle for those who fight maintain the confidentiality of commercially sensitive corporate documents. THIRD-PARTY RIGHTS Public interest groups, the media, prospective litigants and even defeated and disgruntled plaintiffs from long-resolved litigation may seek overturn protective orders many years after they were entered. This is true even if the order was entered by agreement and the plaintiff who agreed has no desire vacate the order. At first glance, it would seem these third-party efforts would be legally fruitless owing issues of standing, timeliness and prejudice the parties the original litigation. Unfortunately, the federal requirements for permissible intervention and challenge are easily satisfied as long as the challenge does not affect the merits of the underlying case or upset its resolution. …
Publication Year: 2004
Publication Date: 2004-04-01
Language: en
Type: article
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