Exe et al v. Fleetwood RV, Inc.

Filing 28

OPINION AND ORDER DENYING 27 MOTION for Protective Order filed by Fleetwood RV Inc. Signed by Magistrate Judge Roger B Cosbey on 6/13/2011. (lns)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

RICHARD D. EXE, et al.,
Plaintiffs,
v.
FLEETWOOD RV, INC.,
Defendant.

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CAUSE NO. 1:11-CV-70

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 # 27.) As the
proposed order contains a plethora of deficiencies, it will be DENIED.
First, the proposed order defines “Confidential Documents” as “any documents or
information produced by Fleetwood in response to Plaintiffs’ Request for Production Nos. 8 and
9.” (Proposed Agreed Protective Order ¶ 1.) The proposed order, however, fails to describe the
type of information or documents that will be produced in response to these two Requests for
Production. 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 991954-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).
Similarly, 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)).
Furthermore, 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.
Moreover, the Seventh Circuit Court of Appeals has made it clear that a protective order
may only issue if the order “makes explicit that either party and any interested member of the
public can challenge the secreting of particular documents.” Id. Language permitting an
interested member of the public to challenge the secreting of particular documents is missing
from the tendered order.
In addition, as to paragraph 12 of the proposed order concerning modifications, an order

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of the Court cannot be modified simply through “written agreement of the parties.”
Finally, paragraph 13 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-cv-601
GPM, 2008 WL 345588, at *2 (S.D. Ill. Feb. 7, 2008) (encouraging the 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

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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
of the proposed agreed protective order submitted by the parties (Docket # 27).
SO ORDERED.
Enter for this 13th day of June, 2011.
S/ Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge

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