IOM Grain LLC v. ZEA Global Seeds SA et al

Filing 64

OPINION AND ORDER DENYING 63 Joint MOTION for Protective Order (amended motion) filed by Illinois Crop Improvement Association Inc, IOM Grain LLC. Signed by Magistrate Judge Roger B Cosbey on 3/5/13. (lhc) Modified on 3/6/2013 (lhc).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

IOM GRAIN, LLC,
Plaintiff,
v.
ILLINOIS CROP IMPROVEMENT
ASSOCIATION, INC., et al.,
Defendants.

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CAUSE NO. 1:10-CV-337

OPINION AND ORDER
Before the Court is a joint motion by the parties seeking approval of an amended
proposed protective order. (Docket # 63.) Because the amended proposed order is again
deficient in several ways, it will be DENIED.
First, the order’s definition of “Confidential Information” is still impermissibly broad. It
seeks to protect “the identity of customers, which is nonpublic and in some cases subject to
confidentiality provisions in agreements with such customers, and non-public financial
information . . . .” (Amended Agreed Mot. ¶ 1.) A protective order must only extend 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); 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).
Here, the use of the term “non-public” in the proposed order is inadequate.

‘Non-public’ is too vague. If it means only that the information is not available to
the general public, then it is insufficient because the information must be kept
secret from and not be readily ascertainable by potential competitors. . . . If the
parties seek non-trade secret protection for any . . . information, they must present
reasons for protection and criteria for designation other than simply that the
information is not otherwise publicly available. They must describe a category or
categories of information and show that substantial privacy interests outweigh the
presumption of public access to discovery material.
Cook, 206 F.R.D. at 248-49. For material to be protected, it “must give the holder an economic
advantage and threaten a competitive injury–business information whose release harms the
holder only because the information is embarrassing or reveals weaknesses does not qualify for
trade secret protection.” Id. Just because a party does not generally release certain information
to the public does not necessarily mean that the release of such information will rise to the level
of causing competitive harm or creating a competitive advantage for others. “[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. Mar. 28, 2003) (citing Baxter Int’l, Inc. v. Abbott Labs., 297 F.3d 544, 547 (7th Cir.
2002)).
Furthermore, paragraph 9’s proposed procedure of allowing the parties to file
Confidential Information under seal and then file a motion to retain the information under seal is
overly cumbersome, inappropriately shifting the burden of unsealing documents to the Court
after fifteen days. Local Rule 5-3(c)(2)(C) provides that “documents may be sealed if and only if
they are subject to a prior protective order or are accompanied by a contemporaneous motion to
seal . . . .” (Emphasis added.)
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
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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, 2003 WL 1702256, at *2. For these reasons, the Court DENIES approval
of the proposed amended agreed motion for entry of protective order submitted by the parties.
They may, however, 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 5th day of March, 2013.
S/ Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge

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