Foster et al v. State Farm Fire and Casualty Company

Filing 34

OPINION AND ORDER DENYING 33 MOTION for Protective Order (Agreed) filed by State Farm Fire and Casualty Company. Signed by Magistrate Judge Roger B Cosbey on 6/7/2011. (lns)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

HARRY FOSTER, III, et al.,
Plaintiffs,
v.
STATE FARM FIRE AND CASUALTY
COMPANY,
Defendant.

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CAUSE NO. 1:10-CV-20

OPINION AND ORDER
Before the Court is a purported stipulation by the parties seeking approval of a proposed
protective order pursuant to Federal Rule of Civil Procedure 26(c). (Docket # 33.) As the
proposed order contains a plethora of deficiencies, it will be DENIED.
First, the term “”Confidential” is never specifically defined in the proposed order,
rendering the order overly-inclusive and vague. (See Proposed Agreed Protective Order ¶ 1.) A
protective order 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, as to Defendant’s desire to protect its employee personnel files, “not all
information in an employee’s personnel file is considered private.” Little v. Mitsubishi Motor
Mfg. of Am., Inc., No. 04-1034, 2006 WL 1554317, at *4 (C.D. Ill. June 5, 2006). “Indeed, there
is nothing confidential about an employee’s job title, job description, hiring date, or work
assignment and location.” Id.; see also Smith v. City of Chicago, No. 04 C 2710, 2005 WL
3215572, at *2 (N.D. Ill. 2005).
Moreover, the proposed order provides for the filing under seal of entire documents that
“contain” or “include” confidential information, instead of more narrowly protecting the actual
confidential material through redaction. (Proposed Agreed Protective Order ¶¶ 1, 12); 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.
In addition, paragraph 20 of the proposed order states that it shall continue to be binding
after the conclusion of the litigation and that the Court will retain jurisdiction. 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-cv601 GPM, 2008 WL 345588, at *2 (S.D. Ill. Feb. 7, 2008) (encouraging the parties to make a

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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). The Court is similarly unwilling to enter an order that attempts to bind
“any future party” to the litigation. (Proposed Agreed Protective Order ¶ 19.)
Finally, although Defendant claims the proposed Order is agreed to by the parties, neither
the Motion or the proposed Order are signed by Plaintiff’s counsel.
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).
Accordingly, the Seventh Circuit Court of Appeals has repeatedly held that overly broad
protective orders are invalid. See, e.g., Cincinnati Insurance, 178 F.3d at 945. “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

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the Seventh Circuit has emphasized apply to such orders.” Shepard v. Humke, IP 01-1103-CH/K, 2003 WL 1702256, at *2 (S.D. Ind. Mar. 28, 2003).
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
of the proposed agreed protective order submitted by Defendant (Docket # 33).
SO ORDERED.
Enter for this 7th day of June, 2011.
S/ Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge

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