In litigation, parties may exchange thousands of documents, some of which may contain sensitive information about personal matters, privileged documents and documents containing sensitive financial and tax information. As a result, many times parties want to enter a “Protective Order” from the Court that allows for such documents to be produced with varying levels of agreed confidentiality protection. In this blog entry, we explore (a) the true and fundamental need for such protections (usually most of it it is just a waste of time) and (b) some of the abuses we have experienced under such Orders.
In short, (a) they should not be entered casually — but carefully and thoughtfully, (b) there needs to be escape or corrective clauses for inappropriate unnecessary designation of documents as confidential, and (c) there should be penalties on counsel for abusing the Protective Order privileges.
What is a Protective Order?
Typically, a Protective Order allows one party or the other to designate documents as “confidential,” and those documents so designated are protected from public release. Further, when sharing them with expert witnesses and other third parties (such as a technical consultant for organizing electronic discovery). That makes sense. The parties should not post on social media or circulate to competitors truly confidential business plans, financial documents and tax documents.
That’s fine as far as it goes, but then the Protective Order typically provides that filing any such document with the Court must be under seal. To me, this runs contrary to the principle that trials in the U.S.A are to be held in the public. Shielding the truth from public view should be done with caution, sparingly. But beyond that is the hassle of carefully making sure you follow the correct procedures. It drives up the cost of litigation, and the penalties for making an innocent mistake.
And then, beyond all of those protections, are production “for attorney eyes only.” Huh? We can’t share certain documents with our clients? Ridiculous in 99.997% of instances. What is so confidential that our own clients can’t be part of information sharing to develop their claims or defenses? Really?
Further many times Protective Orders contain “claw back” provisions wherein documents that are privileged from disclosure (such as attorney-client or spousal privilege documents) can be (or must be) returned as if unseen, and copies not retained.
Digging your own grave.
There is nothing so deadly in the law as concessions and admissions you yourself make, and a Protective Order is of the type that the Judge will say: “Well, you agreed to this.” Thus, a Protective Order is a grave you have dug for yourself. Sign on with great caution.
Judges hate discovery disputes.
Judges are busy with other things, criminal trials, search warrants, temporary restraining orders, and on and on. The rules of discovery are fairly clear and the parties should play fair. But they don’t. And then we must burden a Judge — who might have a murder trial in front of us — with playground disputes about non-production. It’s tedious and unproductive, but sometimes necessary. But this is complicated when a party thoughtlessly agrees to handle documents in a certain way that later becomes impractical or burdensome. Asking the Judge to unwind a dispute over the designation and use of documents as defined and prescribed by a Protective Order is more burden for the Court, a burden with which they don’t want to deal, and may simply refuse to address.
Judges are mixed on requiring Protective Orders.
As a result, I generally oppose the use of most protective orders — it just increases the cost and time for litigation. We are talking tens of thousands of wasted dollars and years of wasted time. So, the request for a Protective Order then ends up before a Judge.
In one active case I have now, we are litigating against a “pay lake” operator. He has five small lakes, and charges the public to fish in them, and charges for works, beer, coke and chips. That’s about the level of privacy and complexity of his finances. “He sells worms, for God’s sake, I say.” He insisted that his financials and tax returns be disclosed under a Protective Order. Huh? What is secret and confidential about selling worms and renting the right to fish in stocked lates at $15 per day? But sure enough, the issue of a protective order was pursued through the Magistrate and further into the Common Pleas Court with Objections to Magistrate’s decision – attorneys can and will fight over everything. Fortunately, in this already expensive litigation, the Court rejected the requirement for a Protective Order, allowing us to access the documents sought without restrictions.
In a second case, a personal injury case against a major public utility, the utility sought and obtained (and as discussed below, abused) the Protective Order, complicating already overly-expensive litigation.
Discovery abuse.
Then, once a Protective Order is in place, invariably opposing counsel will abuse his privileges under the Protective Order:
- In the case of the public utility defendant noted above, they designated 1,500 pages of materials that they themselves previously had posted on line.
- In another case, the Defendants marked more than 200 entirely blank pages as “Confidential.”
- In a recent case, the Protective Order had been entered that included the right to designate hyper-sensitive documents as “For Attorneys Eyes Only.” The case was about residential (Single Family Home) property management. The opposing attorney designated Quick Books records of the financials of the properties as “for attorneys eyes only.” Now, this was ridiculous. What is so hyper-sensitive that we could not share property management financial details with our own client? It was ridiculous.
Confusion about use at trial.
Then, the funniest thing we had recently in a case with a Protective Order: The Order allowed use of the documents marked as “confidential” for “litigation purposes,” which to me means using them as Exhibits at depositions and at trial.
Well, opposing counsel threw a fit about me using a document — a second purchase contract that came after the one being contested at trial — as an Exhibit at Trial. Huh? If that’s not “litigation purposes,” I don’t know what is.
Well, the Judge agreed with me and we were able to use it at trial, but not after significant (15+ minutes) or discussion before the Judge and the Judge slobbering all over himself apologizing that this super-secret document had to come into the record.
One more thing to argue about.
The point of this blog entry is that I don’t like to use Protective Orders and they only should be requested — and permission granted — when they really are needed. Otherwise, they become one more thing the client pays to draft, negotiate and then endlessly argue over as the litigation progresses.
Just say “no.”
