Entertainment USA Inc v. Moorehead Communications Inc

Filing 18

OPINION AND ORDER DENYING 17 MOTION (Joint) for Protective Order by Defendant Moorehead Communications Inc. The parties may submit a revised protective order consistent with the requirements of Rule 26(c) and Seventh Circuit case law. Signed by Magistrate Judge Roger B Cosbey on 6/26/12. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
ENTERTAINMENT USA, INC.,
Plaintiff,
v.
MOOREHEAD COMMUNICATIONS, INC.,
Defendant.

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CAUSE NO. 1:12-CV-116

OPINION AND ORDER
Before the Court is an agreed motion by the parties seeking approval of a proposed
protective order pursuant to Federal Rule of Civil Procedure 26(c). (Docket # 17.) As the
proposed order is deficient in one respect, it will be DENIED.
The proposed order’s definition of “Confidential Information” is vague and overly broad.
It seeks to protect “any material that reflects trade secrets or other confidential research,
development, or commercial information consistent with Federal Rule of Civil Procedure
26(c)(I)(G).” (Proposed Agreed Protective Order ¶ 3.) Of course, 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 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).
That is, “a court must ensure that (1) the information sought to be protected falls within a
legitimate category of confidential information, (2) the information or category sought to be

protected is properly described or demarcated, and (3) the parties know the defining elements of
the applicable category of confidentiality . . . .” 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). Although the
proposed order goes on to describe five specific categories of documents that fall within
Confidential Information, the defined term “Confidential Information” is not limited to these
categories, rendering it overly broad. (See Proposed Agreed Protective Order ¶ 3 (“Confidential
Information shall include, but [is] not limited to . . . .”).)
Furthermore, the description of these categories enables the sealing of entire documents
simply because they “contain” personal identifying information, such as names and telephone
numbers. Of course, personal identifiers could be more narrowly protected through simply
redacting them from the document. Cincinnati Insurance, 178 F.3d at 945 (explaining 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). Although the proposed order incorporates a
method of redaction (Proposed Agreed Protective Order ¶ 11), it does not correct this issue, as
once a document falls within the scope of the overly-broad definition of Confidential
information, redaction is not required.
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 945-46. That is, “[w]hat happens in federal courts is presumptively open to public scrutiny.”
Hicklin Eng’g, L.C. v. Bartell, 439 F.3d 346, 348 (7th Cir. 2006). Therefore, 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 011103-C-H/K, 2003 WL 1702256, at *2 (S.D. Ind. Mar. 28, 2003).
For these reasons, the Court hereby DENIES approval of the proposed agreed protective
order submitted by the parties. (Docket # 17.) Of course, the parties may submit a revised
protective order consistent with the requirements of Rule 26(c) and Seventh Circuit case law.
SO ORDERED.
Enter for this 26th day of June, 2012.
S/ Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge

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