Dame v. Daimler Trucks North America, LLC
MEMORANDUM OPINION AND ORDER signed by Magistrate Judge H. Brent Brennenstuhl on 1/6/21 denying 18 Motion for Protective Order: The joint motion for entry of a protective order (DN 18 ) is DENIED with leave to refile. cc: Counsel(DJT)
Case 4:20-cv-00127-JHM-HBB Document 23 Filed 01/06/21 Page 1 of 4 PageID #: 72
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 4:20-CV-00127-JHM-HBB
DAIMLER TRUCKS NORTH AMERICA, LLC
Before the Court is the joint motion for entry of a protective order (DN 18). The proposed
protective order was previously filed (DN 17). At paragraph 8 of the tendered agreed protective
order, the parties would provide that:
In the event that any discovery materials designated as subject to
this Protective Order are included with, or the contents thereof are
in any way disclosed in, any pleading, motion or other paper filed
with the Clerk of this Court, such confidential document or
information shall be kept confidential and under seal by the Clerk
until further order of the Court. Upon good cause shown, the Court
may order that the use of any such document or of information
contained therein and any testimony associated with the confidential
information contained therein shall be held in camera.
(DN 17 PageID 61 ¶8).
This provision is problematic as it runs afoul of Local Rule of Civil Practice 5.7.
Filing Documents Under Seal
(a) Presumption of public access. Parties and counsel should
presume that all documents filed in district court should be available
for the public to access and that restricting public access can occur
only in limited circumstances, as set forth in this Rule.
Case 4:20-cv-00127-JHM-HBB Document 23 Filed 01/06/21 Page 2 of 4 PageID #: 73
(b) "Sealed Document" defined. A "sealed document"' is defined
as a document or motion filed pursuant to (1) a protective order
restricting public access, (2) an order granting leave to file the sealed
document or motion, in conjunction with a motion for leave to seal
or a previously-filed redacted document, or (3) included within a
category of documents considered sealed under a federal statute or
federal rule of procedure, local rule, or standing order of this court.
A sealed document or motion is not available electronically, or by
any other means, to the parties, attorneys or the public.
(c) Specific Authority or Motion Required; Protective Orders.
Absent a federal statute or federal rule of procedure, local rule, or
standing order of this court. a party seeking to file a sealed document
must electronically file a motion for leave to seal. The motion must
state why sealing is required and must establish that the document
sought to be filed under seal is entitled to protection from public
disclosure. Reference to a stipulation that allows a party to
designate certain documents as confidential is not sufficient grounds
to establish that a document, or portions thereof warrants filing
(d) Electronic Filing Rules and Procedures. All procedures for
filing documents under seal, whether pursuant to this Rule or a
federal statute or federal rule of procedure, are contained in the
court's Amended Electronic Case filing Administrative Policies and
Procedures, available from the Clerk's office on the following
WDKY - http://www.kywd.uscourts.gov/
EDKY - http://www.kyed.uscourts.gov/
The tendered order would permit the parties to file a document under seal without first
moving for leave to do so. While the tendered order contemplates “further orders of the Court,” it
does not address the filing of a motion. Moreover, the tendered order provides that, upon good
cause shown, the Court may maintain protected documents “in camera” (DN 17 PageID 61 ¶8).
“In camera” means “any activity that takes place in the privacy of the judge's chambers. By
extension, the phrase describes a discussion, argument, or activity that occurs as a matter of official
conduct but not in public.” In Camera, BOUVIER LAW DICTIONARY (Desk ed. 2012). Maintaining
a document “in camera” is not the same as maintaining a document under seal in the public record.
Case 4:20-cv-00127-JHM-HBB Document 23 Filed 01/06/21 Page 3 of 4 PageID #: 74
While the parties are free to propose any amended version of an agreed protective order,
the Court has previously accepted orders with the following provision regarding the sealing of
Unless otherwise ordered by the Court or agreed to by the parties,
should any party seek to file any documents and deposition
transcripts containing or reflecting Confidential Information with
the Court or any appellate court, said party shall notify the party that
has designated the information as Confidential Information and
afford the designating party no less than 3 business days to file a
joint motion for leave to seal, pursuant to LR 5.7 and applicable law.
Although filed jointly, the designating party is fully responsible for
preparing the joint motion, filing same, and making any and all
arguments in support of the motion. Consistent with the
requirements in LR 5.7(c), the motion for leave to seal must explain
why “sealing is required and must establish that the document
sought to be filed under seal is entitled to protection from public
disclosure.” The party seeking to file any said Confidential
Information shall not oppose the motion, but shall have no further
obligations under this Order, and the party seeking to file does not
waive any rights under this Order. Should the Court grant the
motion, the Confidential Information shall be filed in a sealed
envelope with a cover label bearing the caption of the action
containing the following notice: TO BE FILED UNDER SEAL
PURSUANT TO AGREED CONFIDENTIALITY ORDER
ENTERED IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF KENTUCKY, CASE NO. _:__cv-_____-___. And, any filings shall comply with LR 5.7(d) as well
as the Court’s Amended Electronic Case filing Administrative
Policies and Procedures. Confidential Information used in any court
proceeding in connection with this action shall not lose its
confidential status through such use. All such Confidential
Information so filed shall be maintained by the Clerk of the Court
separate from the public records in this action and shall be released
to persons or entities other than attorneys for the parties and Court
personnel only upon written agreement of each designating party or
upon further order of the Court entered after reasonable written
notice and opportunity to each designating party to file objections
thereto. In the event that each designating party and any party
seeking to use such Confidential Information at trial are unable to
reach an agreement as to the procedure to ensure the confidentiality
of the Confidential Information, the matter shall be submitted to the
Case 4:20-cv-00127-JHM-HBB Document 23 Filed 01/06/21 Page 4 of 4 PageID #: 75
WHEREFORE, the joint motion for entry of a protective order (DN 18) is DENIED with
leave to refile.
January 6, 2021
Counsel of Record
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