Woody's Restaurant, LLC et al v. Travelers Casualty Insurance Company of America

Filing 34

MEMORANDUM OPINION & ORDER: the parties' construed motion for entry of their agreed protective order 33 is DENIED WITHOUT PREJUDICE. Signed by Judge Joseph M. Hood on 2/27/2014.(CBD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON

WOODY’S RESTAURANT, LLC,
et al.,

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)
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) Action No. 5:12-CV-92-JMH
)
)
)
) MEMORANDUM OPINION AND ORDER
)
)
)
)
)

Plaintiffs,
v.
TRAVELERS CASUALTY INS. CO.
OF AMERICA,
Defendant.

**
This

matter

is

**

**

**

the

Court

before

**
upon

Protective Order” tendered by the parties.
the

Court

acceptable,

finds

that

it

partially

is

the

the

“Agreed

[DE 33].

tendered

order

overbroad

in

is

that

While
largely

it

fails

include mechanics necessary to account for all interests –
including the public interest – implicated by such relief.
Accordingly,
without

the

prejudice

Court
and

rejects

invites

the

the

tendered

parties

to

document
tender

a

revised agreed order consistent with the guidance provided
in this Order.
As

guidance

in

drafting

a

revised

order,

should be sensitive to the following principles:

1

counsel

1.

The

umbrella

Court

order,

generally

supported

accept

an

stated

good

cause,

by

will

agreed
that

reasonably restricts use, circulation, and disclosure of
designated materials exchanged in and in the context of
discovery.

The

tendered

order

is

acceptable

in

that

regard.
2.

Such an umbrella order cannot legitimately pre-

authorize the sealing of substantive court filings.

Unlike

discovery materials, items actually filed in the Court’s
record and considered substantively by the Court may be
cloaked

from

public

view

only

upon

an

individualized

showing of good cause by the party seeking to seal the
particular
Court).

item

(and

a

particularized

finding

by

the

Thus, ¶ 5 of the tendered order is objectionable.

The parties should construct a mechanism by which a filing
party gives notice, as applicable, of its proposed use of
any “protected” information, to permit any other party to
seek

court

guidance

or

intervention

regarding

whether

a

substantive filing should (and can) be sealed in whole or
part.1
1

As stated in 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.
See Seattle Times Co. v.
Rhinehart, 467 U.S. 20 (1984).
But those documents,
usually a small subset of all discovery, that influence or
underpin
the
judicial
decision
are
open
to
public

2

3.

Because of the provisional nature of an agreed

protective order, an umbrella order must further provide
the following:
a.
and

The Court may modify the order upon prior notice

adequate

designation
determination

cause.
is

Further,

preliminary

that

any

the

and

parties’
is

particular

not

item

“protected”
a

is,

judicial
in

fact,

protected from disclosure in the event of a challenge.
b.
to

In addition to containing a mechanism for a party

challenge

an

opponent’s

designation

of

material

as

“protected,” the order further must acknowledge that a nonparty may seek permission to intervene to challenge the
terms of or operation of the order, or that a producing
third-party also may challenge the order.2
4.

The

parties

must

revise

the

tendered

order

to

cure the noted deficits.

inspection unless they meet the definition of trade secrets
or other categories of bona fide long-term confidentiality.
See, e.g., Grove Fresh Distributors, Inc. v. Everfresh
Juice Co., 24 F.3d 893 (7th Cir. 1994); In re Continental
Illinois Securities Litigation, 732 F.2d 1032 (7th Cir.
1984).
See also Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227
(6th Cir. 1996)(discussing tradition of “public access to court
proceedings” and standards for restrictions); Chicago Tribune Co. v.
Bridgestone/Firestone, Inc., 263 F.3d 1304 (11th Cir. 2001).
2
The Court refers the parties to the Manual for Complex Litigation,
(Fourth) § 11.432 (Federal Judicial Center 2004), which helpfully
discusses confidentiality and the use of an umbrella confidentiality
order.

3

Accordingly, the parties’ construed motion for entry
of their agreed protective order [DE 33] is DENIED WITHOUT
PREJUDICE.
This the 27th day of February, 2014.

4