Hackl et al v. Icon Health & Fitness Inc et al

Filing 24

ORDER signed by Judge J P Stadtmueller on 5/7/09 denying without prejudice 20 the Stipulation for a Protective Order filed by defendants Icon Health & Fitness Inc. and Sears Roebuck & Co. See Order. (cc: all counsel)(nm)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
____________________________________________ T H E R E S E A. HACKL and RICHARD HACKL, P la in t iffs , and U N IT E D HEALTHCARE OF W IS C O N S IN , In vo lu n ta ry Plaintiff, v. IC O N HEALTH & FITNESS, INC., SEARS ROEBUCK & COMPANY and ABC INSURANCE COMPANY, D e fe n d a n ts . ____________________________________________ Case No. 08-CV-871

ORDER
T h e parties filed a stipulation for a protective order and a proposed protective o rd e r on April 23, 2009. The proposed order filed by the parties follows the standard p r o te c tive order laid out in Civil Local Rule 26.4. However, the parties fail to make t h e requisite showing of "good cause" for entry of a protective order and do not in d ic a te with specificity which materials they wish to designate as confidential. This c o u r t will not sign an order that shields discovery information from public view unless th e parties demonstrate good cause for doing so, and unless the order is narrowly c o n s tru c te d to shield only the information that deserves protection. T h e court cannot enter a generic protective order concealing unspecified a m o u n ts and types of information. This is because pretrial discovery must, as a g e n e ra l proposition, occur in the public eye, unless compelling reasons exist for

lim itin g the public's access. American Telephone & Telegraph Co. v. Grady, 594 F .2d 594, 596 (7th Cir. 1979); Fed. R. Civ. P. 26(c); see also Citizens First Nat'l B a n k of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 945-46 (7th Cir. 1999) (noting p re s u m p tio n of public access to discovery materials). In Hicklin Eng'r, L.C. v. Bartell, th e Seventh Circuit articulated the rationale for maintaining a court record that is o p e n to the public: J u d g e s deliberate in private but issue public decisions after public a rg u m e n ts based on public records. The political branches of g o ve rn m e n t claim legitimacy by election, judges by reason. Any step th a t withdraws an element of the judicial process from public view m a k e s the ensuing decision look more like fiat and requires rigorous ju s tif ic a tio n . 4 3 9 F.3d 346, 348 (7th Cir. 2006). The Hicklin court also instructed "that litigation be c o n d u c te d in public to the maximum extent consistent with respecting trade secrets, th e identities of undercover agents, and other facts that should be held in c o n fid e n c e ." Id. (citations omitted). R u le 26(c) of the Federal Rules of Civil Procedure allows the court to enter a p ro te c tive order for good cause shown. A protective order must only extend to "p ro p e rly demarcated categor[ies] of legitimately confidential information." Citizens F irs t Nat'l Bank of Princeton, 178 F.3d at 946. In the instant case, the proposed p ro te c tive order states only that material may be designated as "CONFIDENTIAL" w h e n a party believes in good faith that it contains "trade secrets or nonpublic te c h n ic a l, commercial, financial, personal, or business information." (Proposed P r o te c tive Order 1-2, Docket # 20). However, the parties fail to provide any detail -2-

re g a rd in g the materials falling within these categories that they will seek to protect a s confidential. The Seventh Circuit has repeatedly invalidated such overly broad p ro te c tive orders. See, e.g., Citizens First Nat'l Bank of Princeton, 178 F.3d at 945 (c ita tio n s omitted); see also Jepson, Inc. v. Makita Elec. Works, Ltd., 30 F.3d 854, 8 5 8 (7th Cir. 1994) (holding that even if the parties agree on the terms of a protective o r d e r , they still must show good cause exists for the court to issue the order). Thus, th e court cannot enter a protective order as currently proposed. However, the Seventh Circuit provides guidance on permissible protection of c o n fid e n tia l discovery materials. In Citizens First Nat'l Bank of Princeton, the court p r o v id e d the following framework for protective orders: T h e re is no objection to an order that allows the parties to keep their tra d e secrets (or some other properly demarcated category of le g itim a te ly confidential information) out of the public record, provided th e judge (1) satisfies himself that the parties know what a trade secret is and are acting in good faith in deciding which parts of the record are tra d e secrets and (2) makes explicit that either party and any interested m e m b e r of the public can challenge the secreting of particular d o c u m e n ts . 1 7 8 F.3d at 946. To address the deficiencies in the proposed protective order, the p a rtie s may establish good cause for entry of such an order by describing the types o f information they deem confidential in a narrowly-tailored and specific manner. F u rth e r, a revised protective order proposal should include a mechanism for either p a rty, or an interested member of the public, to challenge the confidential d e s ig n a tio n of a document. The court invites the parties to address the

a fo re m e n tio n e d inadequacies and file a modified proposed protective order. If the -3-

m o d ifie d protective order is consistent with the requirements of Rule 26(c) and S e ve n th Circuit case law, the court will enter it. Accordingly, IT IS ORDERED that the Stipulation for a Protective Order (Docket #20) be a n d the same is hereby DENIED without prejudice. D a te d at Milwaukee, W is c o n s in , this 7th day of May, 2009. BY THE COURT:

J .P . Stadtmueller U .S . District Judge

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