Willis v. Equifax Information Services LLC et al

Filing 36

MEMORANDUM OPINION & ORDER: The parties' construed motion for entry of their stipulated protective order 35 is DENIED WITHOUT PREJUDICE. Signed by Judge Joseph M. Hood on 2/11/15.(LC)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
JEFF WILLIS,

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Plaintiff,
v.
EQUIFAX INFORMATION SERVICES,
LLC, et al.,
Defendants.

Civil Case No.
5:14-cv-400-JMH
MEMORANDUM OPINION & ORDER

***

This

matter

is

before

the

Court

upon

the

“Stipulated

Protective Order” tendered by the parties. [DE 35]. While the
Court finds that the tendered order is largely acceptable, it is
partially

overbroad

in

that

it

fails

to

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

authorize

the

an

umbrella

sealing

of

order

cannot

substantive

legitimately

court

filings.

preUnlike

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). Thus, ¶ 4 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 “confidential” 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 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

3. In addition to containing a mechanism for a party to
challenge

an

opponent’s

designation

of

material

as

“confidential,” 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.
Accordingly,
their

stipulated

the

parties’

protective

construed

order

[DE

motion

35]

is

for
DENIED

entry

of

WITHOUT

PREJUDICE.
This the 11th day of February, 2015.

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