By Jonathan Schmidt / Guest Column
Many times in litigation, parties to a case will have to exchange information that is sensitive, confidential or even a trade secret. Although the party may not want to hand over this information for any one of these reasons, the party is often required to do so because the information or documents are relevant to the claim in the case.
While this is often worrisome for clients, many also face the additional complication that documents used in a civil case become records available to the public, and can often be found by any individual who takes the time to search a court docket.
In order to protect this type of information, many parties agree to the use of protective orders. A carefully drafted protective order can go a long way toward keeping your private information out of the public eye.
What is a protective order?
Protective orders in civil cases are orders entered by a judge. Sometimes, the orders can be drafted by the parties who agree to govern the disclosure of information in a case. During the course of discovery, parties may have to exchange many different types of documents including things such as:
- Medical records
- Tax returns
- Accounting books and records
- Trade secrets or proprietary information
A protective order allows parties to identify this type of information ahead of time and designate it as confidential in their case. The protective order then sets forth the terms for how that confidential information should be treated and how it can be used. In most cases, a protective order also clearly designates that confidential information cannot be shared with the public or publicly filed.
Elements of a protective order
First, the protective order must set out what types of documentation are going to be considered confidential in the case. While one party may want to keep a wide variety of documents confidential, another may want to be able to share those documents with third parties. Thus, there may be a negotiation that occurs in defining what is to be confidential and protected.
Second, the protective order will set forth how those confidential documents must be handled. Some examples are how they should be exchanged between the parties and whether they need to be marked confidential or redacted.
Third, the protective order can set forth who is entitled to look at the documents. In the most extreme of circumstances, such as in a trade secrets case, the parties may decide that documents are for “attorneys’ eyes only,” meaning that while attorneys can look at the documents, the party receiving them cannot. The order may also require third parties reviewing the documents to sign an agreement acknowledging that they are bound by the terms of the order.
Protective orders are something that any party can try to seek in a civil case, but there is no guarantee that they will be granted. Courts serve the public and have a legal obligation to allow information to remain public. For this reason, judges can be suspicious of protective orders that may try to keep overly broad categories of information from the public or limit another party’s access to documents.
When considering a protective order, one of the best things to do is to be fairly narrow and specific in the scope of the documents to be protected and to have a good basis for the need. While courts provide information to the public, they are not interested in embarrassing parties or jeopardizing their financial success by disseminating information that should be protected. Thus, in many instances, a reasonably drafted protective order will be acceptable in a case.
Despite the best efforts of many attorneys to be courteous and reasonable, sometimes the process of discovery in a lawsuit becomes an all-out effort to obtain sensitive and embarrassing information on a party in the hopes of portraying them in a bad light.
When this happens, you need an attorney who is willing to aggressively fight back against unreasonable and irrelevant requests for documents and information, and who can help you obtain a protective order that will keep your private information from disclosure.
Jonathan Schmidt is an attorney and partner with Nazette, Marner, Nathanson & Shea LLP. He practices areas of business and litigation. He can be contacted at firstname.lastname@example.org or www.jschmidtlaw.com.