Entertainment USA Inc v. Moorehead Communications Inc

Filing 43

OPINION AND ORDER DENYING 42 MOTION (Joint) for Protective Order (Third Amended) by Plaintiff Entertainment USA Inc, 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 6/3/13. (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 a Third Amended Joint Motion for Protective Order by the parties
seeking approval of a proposed amended protective order pursuant to Federal Rule of Civil
Procedure 26(c). (Docket # 42.) As the proposed order is deficient, it will be DENIED.
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). Here, the proposed order’s
definition of “Confidential Information” is vague and overly broad. It seeks to protect, among
other things, “[f]inancial information (sales dollar values, market information, and marketing or
business plans), personnel materials, and any trade secrets of Verizon and Moorehead that have
or will be exchanged that are not part of the public domain at the time of disclosure[.]”
(Proposed Third Amended Agreed Protective Order ¶ 3.)
But the parties fail to explain how all “market information” and “marketing or business

plans” and “personnel materials” rise to the level of confidential information. For example, “not
all information in an employee’s personnel file is considered private.” Little v. Mitsubishi Motor
Mfg. of Am., Inc., No. 04-1034, 2006 WL 1554317, at *4 (C.D. Ill. June 5, 2006). “[T]here is
nothing confidential about an employee’s job title, job description, hiring date, or work
assignment and location.” Id.; see also Smith v. City of Chicago, No. 04 C 2710, 2005 WL
3215572, at *2 (N.D. Ill. 2005). 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.
Furthermore, the incorporation of the qualifier “not part of the public domain” 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. Here, 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.
Moreover, “merely 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 011103-C-H/K, 2003 WL 1702256, at *1 (S.D. Ind. Mar. 28, 2003) (citing Baxter Int’l, Inc. v.

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Abbott Labs., 297 F.3d 544, 547 (7th Cir. 2002)).
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. 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, 2003 WL
1702256, at *2.
For these reasons, the Court hereby DENIES approval of the proposed third amended
agreed protective order submitted by the parties. (Docket # 42.) 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 3rd day of June, 2013.
S/ Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge

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