Moore v. Sony Electronics Inc
Filing
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OPINION AND ORDER DENYING 24 Agreed MOTION for Protective Order filed by Sony Electronics Inc, seeking approval of the 23 Stipulated Protective Order filed by Sony Electronics Inc. The parties may submit a revised protective order consistent with the requirements of Rule 26(c)(7) and Seventh Circuit case law. Signed by Magistrate Judge Roger B Cosbey on 10/6/2011. (lns)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
JAY MOORE,
Plaintiff,
v.
SONY ELECTRONICS, INC.,
Defendant.
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CAUSE NO. 1:11-CV-180
OPINION AND ORDER
Before the Court is an Agreed Motion for Protective Order (Docket # 24), seeking
approval of a stipulated Protective Order (Docket # 23). As the proposed order, which extends
beyond the discovery phase of the proceedings, is deficient in several ways, it will be DENIED.
First, the order’s definition of “confidential information” is too broad. It allows
Defendant Sony Electronics, Inc., to designate as “confidential” any materials “related to the
sale, design, manufacture, or testing of any Sony product or components . . . .” 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).
While certainly good cause exists to seal much of that material, for example, “engineering, detail
and assembly drawings, internal specifications and similar technical information” (Proposed
Protective Order 1), the Court is not yet convinced that all materials “related to the sale” of Sony
products needs to be protected. Of course, under Cincinnati Insurance, a protective order must
only extend to “properly demarcated categor[ies] of legitimately confidential information.” Id.;
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, the use of the phrase “considers confidential and desires not to be made
public” in connection with the definition of “confidential information” does not adequately
narrow the field.
‘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.; Shepard v. Humke, IP 01-1103-C-H/K, 2003 WL 1702256, at *1
(S.D. Ind. March 28, 2003) (“[M]erely asserting that a disclosure of the information ‘could’
harm a litigant’s competitive position is insufficient; the motion must explain how.” (citing
Baxter Int’l, Inc. v. Abbott Labs., 297 F.3d 544, 547 (7th Cir. 2002)).)
In addition, the proposed order seeks to cause documents “containing” confidential
information to be filed under seal (Proposed Protective Order ¶ 6 ), 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
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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 Court cannot approve
a protective order that leaves a party with a “virtual carte blanche . . . to seal whatever portions
of the record the party wanted to seal.” Id. at 944. The Seventh Circuit Court of Appeals has
repeatedly held that such overly broad protective orders are invalid. See, e.g., id. at 945.
And finally, Cincinnati Insurance specifies that protective orders 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. at 946. Here, the proposed order contains no such
language.
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.” Id. at 945-46. 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). As a result, 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 hereby DENIES the Agreed Motion for Protective Order
(Docket # 24), seeking approval of the stipulated protective order submitted by the parties
(Docket # 23). Of course, the parties may submit a revised protective order consistent with the
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requirements of Rule 26(c)(7) and Seventh Circuit case law.
SO ORDERED.
Enter for this 6th day of October, 2011.
S/ Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge
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