Cherry v. EMID, LLC
Filing
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OPINION AND ORDER DENYING 33 MOTION (Joint) for Protective Order by Defendant EMID, LLC. The 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 8/30/16. (cer)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
GLENN CHERRY,
Plaintiff,
v.
EMID, LLC,
Defendant.
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CAUSE NO. 1:15-cv-00241-JVB-SLC
OPINION AND ORDER
Before the Court is the parties’ joint motion for approval of a proposed stipulated
protective order pursuant to Federal Rule of Civil Procedure 26(c). (DE 33). Because the
proposed order is vague and overly broad, the parties’ motion will be DENIED.
Rule 26(c) allows the Court to enter a protective order for good cause shown.1 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 Sci. Corp., 206 F.R.D. 244, 248-49 (S.D. Ind. 2001) (same).
Here, the language of the proposed order does not clearly define what information can be
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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-997DFH-TAB, 2008 WL 4545310, at *3 (S.D. Ind. Oct. 10, 2008); see also Baxter Int’l, Inc. v. Abbot Labs., 297 F.3d
544, 545 (7th Cir. 2002) (“Secrecy is fine at the discovery stage, before the material enters the judicial record. But
those documents, usually a small subset of all discovery, that influence or underpin the judicial decision are open to
public inspection unless they meet the definition of trade secrets or other categories of bona fide long-term
confidentiality.” (citations omitted)). Because the proposed order in this case contemplates sealed filings, it requires
a higher level of scrutiny.
designated as “Confidential” by the parties. It discusses protecting Plaintiff’s personnel records
and medical records (DE 33-1 ¶ 3); “employees’ mental health records” (DE 33-1 ¶ 3); “highly
confidential, proprietary, and trade secret information concerning the operation of [Defendant’s]
business” (DE 33-1 ¶ 5); “personal, private or confidential information relating to employees,
officers, directors, managers, or agents of Defendant who are not parties to this litigation” (DE
33-1 ¶ 10); and “any documents reflecting Defendant’s business relationship with its clients,
customers, and vendors” (DE 33-1 ¶ 10). It is unclear, however, which of these phrases are
actually intended to be the definition of “Confidential.”
In any event, the categories proposed concerning Defendant’s business are overly broad.
“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.” Cook, Inc., 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., 297 F.3d at 547).
And as to personnel records, “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
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1554317, at *4 (C.D. Ill. June 5, 2006). For example, “there 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 Chi., No. 04 C 2710, 2005 WL 3215572, at *2 (N.D. Ill. 2005). Moreover, with
respect to Plaintiff’s personnel and medical information, while “many litigants would like to
keep confidential the salary they make, the injuries they suffered, or the price they agreed to pay
under a contract, . . . when these things are vital to claims made in litigation, they must be
revealed.” Baxter Int’l, Inc., 297 F.3d at 547; see, e.g., Brown v. Auto. Components Holdings,
LLC, No. 1:06-cv-1802-RLY-TAB, 2008 WL 2477588, at *1 (S.D. Ind. June 17, 2008) (denying
leave to file the plaintiff’s personnel and medical information under seal where the information
was central to the case).
Another problem is that the proposed order allows documents that “include” confidential
information to be filed entirely under seal (DE 33-1 ¶¶ 2, 5, 10), rather than solely protecting the
actual confidential information through redaction. 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 portions of the document). 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 (citations omitted).
For the foregoing reasons, the Court DENIES the parties’ joint motion for entry of the
proposed stipulated protective order (DE 33). The parties may submit a revised proposed
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protective order consistent with the requirements of Rule 26(c) and Seventh Circuit case law.
SO ORDERED.
Entered this 30th day of August 2016.
/s/ Susan Collins
Susan Collins,
United States Magistrate Judge
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