IOM Grain LLC v. ZEA Global Seeds SA et al

Filing 59

OPINION AND ORDER DENYING 58 Joint MOTION for Protective Order by Plaintiff IOM Grain LLC, Defendant Illinois Crop Improvement Association Inc. 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. Signed by Magistrate Judge Roger B Cosbey on 1/31/13. (lhc) Modified on 2/1/2013 to correct doc type (smp).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
IOM GRAIN, LLC,
Plaintiff,
v.
ILLINOIS CROP IMPROVEMENT
ASSOCIATION, INC.,
Defendant.

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CAUSE NO. 1:10-CV-337

OPINION AND ORDER
Before the Court is an Agreed Motion for Entry of Protective Order, seeking approval of
a proposed protective order stipulated to by the parties. (Docket # 58.) As the proposed order
contains several defects, it will be DENIED.
Federal Rule of Civil Procedure 26(c)(7) allows the Court to enter a protective order for
good cause shown. See Citizens First Nat’l Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d
943, 946 (7th Cir. 1999). However, the protective order submitted by the parties is inadequate to
support a finding of good cause.
First, the order’s definition of “confidential information” is impermissibly broad and
vague. It allows parties to protect information “of a commercially sensitive nature relating to
business activities of the Parties and witnesses which are confidential or proprietary in nature,
such as the identity of customers and clients, and information required to be kept confidential
due to agreement made by the Parties, witnesses, and others who are not involved in the present
litigation.” (Proposed Protective Order ¶ 1.) Under Cincinnati Insurance, a protective order
must only extend to “properly demarcated categor[ies] of legitimately confidential information.”

178 F.3d at 946; 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).
In addition, the proposed order provides for the protection of any document that “may
contain” confidential information (Proposed Protective Order ¶¶ 1, 2), rather than solely
protecting the actual confidential material through redaction. See 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).
And, although paragraph 9 of the proposed protective order provides that a party may not
file any document under seal without an additional order from this Court upon a showing of
good cause, the language of paragraph 8 calls that into question, reflecting that confidential
information “shall be filed and maintained under seal by the Clerk until further order of the
Court.”
Moreover, paragraph 16 states that the “provisions of the Protective Order . . . shall not
terminate at the conclusion of this action.” The Court, however, is unwilling to enter a
protective order that suggests the Court 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 parties to make a contractual agreement among

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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).
And finally, paragraph 17 provides that the protective order “may be amended by the
agreement of counsel for the Parties in the form of a further stipulated protective order.” But of
course, although the parties may stipulate to a proposed amended protective order, the protective
order is not actually amended until the Court approves and adopts the order.
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. Accordingly, a protective 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 v. Humke, IP 01-1103-C-H/K, 2003 WL 1702256, at *2 (S.D. Ind. Mar.
28, 2003). For these reasons, the Court DENIES approval of the proposed protective order
submitted by the parties (Docket # 58). The parties, however, may submit a revised protective
order consistent with the requirements of Federal Rule of Civil Procedure 26(c)(7) and Seventh
Circuit case law.
SO ORDERED.
Enter for this 31st day of January, 2013.
S/ Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge

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