Agri-Labs Holdings LLC v. TapLogic LLC

Filing 24

OPINION AND ORDER denying 23 Motion for approval of the proposed agreed Protective Order: parties may submit a revised proposed protective order consistent with the requirements of Rule 26(c) and Seventh Circuit case law. Signed by Magistrate Judge Susan L Collins on 4/27/15. (mc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

AGRI-LABS HOLDINGS, LLC,

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Plaintiff,
v.
TAPLOGIC, LLC,
Defendant.

CAUSE NO. 1:15-CV-26

OPINION AND ORDER
Before the Court is a joint motion by the parties seeking approval of a proposed agreed
protective order pursuant to Federal Rule of Civil Procedure 26(c). (DE 22). Because the
proposed order is inadequate in several ways, the motion will be DENIED.
Rule 26(c) 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).
A protective order, however, must only extend to “properly demarcated categor[ies] of
legitimately confidential information.” Id.; see 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) (same); Andrew Corp. v. Rossi,
180 F.R.D. 338, 342 (N.D. Ill. 1998) (same).
Here the proposed order fails to set forth narrow, demarcated categories of legitimately
confidential information. Instead it allows a party to designate material confidential “if it
contains or reflects confidential, proprietary, and/or commercially sensitive information.”

(Proposed Agreed Protective Order ¶ 7(a)). The Seventh Circuit has repeatedly held that such
overly broad protective orders are invalid.1 See, e.g., Cincinnati Ins. Co., 178 F.3d at 945 (noting
that a broad protective order granting carte blanche discretion to a party is invalid).
“[I]f 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.” Cook, 206 F.R.D. at 249. “They must describe a category or
categories of information and show that substantial privacy interests outweigh the presumption
of public access to discovery material.” Id. 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. at 248. Accordingly, “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 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)).
Also, the Court is unwilling to approve paragraph 10(m) of the proposed order, which
allows an entire document to be filed under seal merely because it contains some confidential
information. See Cincinnati Ins. Co., 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
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“[T]he same scrutiny is not required for protective orders made only for discovery as for those that permit
sealed filings.” Containment Techs. Grp., Inc. v. Am. Soc’y of Health Sys. Pharmacists, No. 1:07-cv-997, 2008 WL
4545310, at *3 (S.D. Ind. Oct. 10, 2008). The proposed order contemplates sealed filings, and as such, requires a
higher level of scrutiny.

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portions of the document).
In addition, paragraph 20 of the proposed order states that the Court shall retain
jurisdiction after the termination of this action to resolve any disputes arising out of the
protective order. The Court, however, is unwilling to enter a protective order that suggests it
retain jurisdiction of any kind after resolution of the case. See E.E.O.C. v. Clarice’s Home Care
Serv., Inc., No. 3:07-cv-601, 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).
Finally, the Seventh Circuit Court of Appeals has made it clear that a protective order
must “make[] explicit that either party and any interested member of the public can challenge the
secreting of particular documents.” Cincinnati Ins. Co., 178 F.3d at 946. The instant proposed
order, however, does not contain this language.
In sum, “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. 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.
Therefore, the Court DENIES the joint motion for approval of the proposed agreed
protective order. (DE 23). The parties may submit a revised proposed protective order consistent
with the requirements of Rule 26(c) and Seventh Circuit case law.
SO ORDERED.
Enter for this 27th day of April 2015.

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S/ Susan Collins
Susan Collins,
United States Magistrate Judge

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