Three Types of Protective Orders – Requirements to Seal Court Record

EEOC v. Exxon Mobile Corp., 2024 WL 4249229 (M.D. La. Sept. 11, 2024), was a Title VII action alleging a hostile work environment.

One of many discovery disputes involved the scope of protective order.  The court explained that:

This circuit recognizes three types of protective orders: (1) specific, (2) blanket, and (3) umbrella. On one side of the spectrum are specific protective orders, which cover specific, identified information…. On the opposite side of the spectrum are umbrella protective orders, which provide for the designation of all discovery as protected without any screening by either the parties or the court…. In the middle of the spectrum are blanket protective orders, which require the parties to designate as protected “documents which they in good faith believe contain trade secrets or other confidential commercial information and which are usually agreed to by the parties and approved of by the courts.”

Id. at *29 (emphasis added).

The ExxonMobil court added that: “Even in the case of a blanket protective order, however, the party seeking protection bears the burden of justifying the confidentiality of the documents sought to be covered.”

ExxonMobile proposed the following definition of confidential documents: “ExxonMobil’s proprietary information and materials that (1) are not accessible by or distributed to the public, (2) that are generally only distributed to or accessible to certain ExxonMobil employees, and (3) that have been developed by ExxonMobil through research, development, and/or technical or other expertise.”  Id. at *29.

The court rejected ExxonMobile’s “broad and amorphous” description of confidential information.  “The language proposed by Exxon would transform virtually every document it creates into protected ‘confidential’ information under the final protective order.”  Id. at *30.  It wrote that, in order to obtain protection under Fed.R.Civ.P. 26(c)(1)(G), “a party must first establish that the information sought is a trade secret or other confidential information and then demonstrate that its disclosure would cause an identifiable, significant harm.”   Id. at *29 (citation omitted).

If confidential documents were to be filed in court, “the Court reminds the parties that regardless of any designation of documents exchanged in discovery as ‘Confidential Information’ pursuant to the final protective order, which will govern the exchange of documents in the context of discovery, the Court will apply a ‘stricter balancing standard’ to determine whether any documents may be filed into the record under seal with respect to motions that require judicial resolution of the merits. …  In short, the protections provided by the final blanket protective order governing the exchange of documents in discovery will not necessarily apply to filings made in the context of the adjudication of this action on the merits.”  Id. at *31.

In the United States District Court for the District of Maryland, Local Rule 104.13 states that:

Any proposed confidentiality order shall include (a) a definition of confidentiality consistent with Fed. R. Civ. P. 26(c); (b) a method for challenging particular designations of confidentiality with the burden remaining on the party seeking confidentiality to justify it under Rule 26(c); (c) a provision that whenever materials subject to the confidentiality order (or any pleading, motion or memorandum referring to them) are proposed to be filed in the Court record under seal, the party making such filing must simultaneously submit a motion and accompanying order pursuant to L.R. 105.11; and (d) a provision permitting the Clerk to return to counsel or destroy any sealed material at the end of the litigation.

In Appendix D to the Local Rules, the Court has published a “Stipulated Order Regarding Confidentiality of Discovery Material” that conforms to the Local Rule.

Local Rule 105.11 addresses sealing of filed documents:

Any motion seeking the sealing of pleadings, motions, exhibits, or other documents to be filed in the Court record shall include (a) proposed reasons supported by specific factual representations to justify the sealing and (b) an explanation why alternatives to sealing would not provide sufficient protection.  The Court will not rule upon the motion until at least fourteen (14) days after it is entered on the public docket to permit the filing of objections by interested parties.  Materials that are the subject of the motion shall remain temporarily sealed pending a ruling by the Court.  If the motion is denied, the party making the filing will be given an opportunity to withdraw the materials.  Upon termination of the action, sealed materials will be disposed of in accordance with L.R. 113.

Appendix D also includes a form “Order Sealing Portions of Court Record” that conforms to Local Rule 105.11.