Kelty v. Toyota Motor Manufacturing, Kentucky, Inc.
Filing
9
MEMORANDUM OPINION AND ORDER: Parties' construed motion for entry of their 8 agreed protective order is DENIED WITHOUT PREJUDICE. Signed by Judge Joseph M. Hood on 05/24/2012. (KLB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
LAURA N. KELTY,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
TOYOTA MOTOR MANUFACTURING,
KENTUCKY INC.,
Defendant.
**
**
Action No. 5:12-cv-119-JMH
MEMORANDUM OPINION AND ORDER
**
**
**
This matter is before the Court upon the “Agreed Protective
Order” tendered by the parties.
[DE 8].
While the Court finds
that the tendered order is largely acceptable, it is partially
overbroad
in
that
it
fails
include
mechanics
necessary
to
account for all interests – including the public interest –
implicated by such relief.
Accordingly, the Court rejects the
tendered document without prejudice and invites the parties to
tender
a
revised
agreed
order
consistent
with
the
guidance
provided in this Order.
As guidance in drafting a revised order, counsel should be
sensitive to the following principles:
1.
The Court generally will accept an agreed umbrella order,
supported by stated good cause, 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 item (and
a particularized finding by the Court).
the tendered order is objectionable.
Thus, ¶ 2(d) of
The parties should
construct a mechanism by which a filing party gives notice,
as
applicable,
information,
to
of
its
permit
proposed
any
use
other
of
party
any
to
“protected”
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 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
2
3.
Because of the provisional nature of an agreed protective
order,
an
umbrella
order
must
further
provide
the
following:
a.
The Court may modify the order upon prior notice and
adequate
cause.
designation
is
Further,
preliminary
the
parties’
and
is
not
“protected”
a
judicial
determination that any particular item is, in fact,
protected from disclosure in the event of a challenge.
b.
In addition to containing a mechanism for a party to
challenge
an
opponent’s
designation
of
material
as
“protected,” the order further must acknowledge that a
non-party
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.
Accordingly,
their
agreed
the
parties’
protective
construed
order
[DE
8]
motion
is
for
DENIED
entry
of
WITHOUT
PREJUDICE.
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
This the 24th day of May, 2012.
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?