Opinion
No. 97 C 8311.
August 15, 2006
REPORT AND RECOMMENDATION
INTRODUCTION AND FACTUAL BACKGROUND
The case is here pursuant to a referral from Judge Conlon for a Report and Recommendation on the defendant's motion to vacate a protective order she issued eight years ago. The motion is addressed to the court's discretion. 8 Wright, Miller, Marcus, Federal Practice and Procedure, § 2044.1 (1994).
The initial briefs were inadequate to make an informed decision on the defendant's motion. The defendant's opening brief consisted of twelve lines in four numbered paragraphs, gave virtually no background facts, and cited only one case without explanation or elaboration. The motion could have been denied on the principle that skeletal presentations are forfeited. As the Seventh Circuit has stressed, it is not a court's responsibility to research and construct the parties' arguments. United States v. McLee, 436 F.3d 751, 760 (7th Cir. 2006). The reasons for this sound principle lie at the core of our adversary system and implicate other significant considerations. See Kyles v. J.K. Guardian Security Services, 2006 WL 1343059 (N.D.Ill. 2006).
See Bretford Mfg., Inc. v. Smith System Mfg. Corp., 419 F.3d 576, 581 (7th Cir. 2005) ("treatment [of an issue] less than a page long, does not preserve a contention"); Huck Store Fixture Co. v. N.L.R.B., 327 F.3d 528, 537 (7th Cir. 2003) (single-page argument deemed waived); United States v. Spiller, 261 F.3d 683, 692 n. 9 (7th Cir. 2001) (skeletal arguments are waived).
Rather than recommending to Judge Conlon that the motion be denied because the defendant's superficial presentation resulted in a forfeiture, I instructed the parties to file further briefs, see Kyles, 2006 WL 1343059; Baxter Intern., Inc. v. Abbott Laboratories, 297 F.3d 544, 545 (7th Cir. 2002), and they have done so. While the defendant's revised opening brief reviewed the circumstances that underlay the protective order, it did not significantly add to the legal analysis, which is now a page long and cites (without elaboration) one additional case. It was not until the reply brief that the defendant's contentions were elaborated on. The defendant's position is now based not merely on the fact that eight years have elapsed since the order was entered, but on the additional grounds that in the Seventh Circuit protective orders cannot extend beyond the termination of the case, and they are limited to only those materials which can be denominated as trade secrets. ( Memorandum of Law in Support of Defendant's Motion to Vacate Protective Order at 6) (" Defendant's Memorandum").
The protective order challenged by the defendant was entered by Judge Conlon on June 25, 1998, and the litigation that produced it was concluded nearly five years ago. The plaintiffs in the underlying lawsuit were two "employer testers" — persons posing as job seekers for the purpose of detecting unlawful hiring discrimination — hired by the Legal Assistance Foundation of Chicago ("LAFC") in the summer of 1995. The LAFC provided the plaintiffs with fictitious credentials and resumes, briefly trained them, and sent them to apply for jobs at employers its project coordinator chose. The plaintiffs, both of whom were African American, were paired with two white testers. The idea was that the white tester's credentials were so similar to her African American counterpart that if only the white tester received a job offer, there would had to have been racial discrimination. See Kyles v. J.K. Guardian Sec. Services, Inc., 222 F.3d 289, 292-93 (7th Cir. 2000).
At about the same time, the defendant was running an advertisement for a receptionist in the Chicago Tribune. The LAFC targeted the defendant by sending the testers' resumes and sending the testers to apply in person for the position. Only one of the white testers got a job offer. The two African American testers pursued complaints with the Equal Employment Opportunity Commission ("EEOC") and, after securing right-to-sue letters, filed suit against defendant alleging that the company had engaged in racial discrimination in violation of both Title VII and 42 U.S.C. § 1981. Defendant counterclaimed, alleging that the plaintiffs had fraudulently misrepresented their interest in employment with the company.
During discovery, the LAFC asserted that certain information about the testing program was confidential and protected by the attorney-client privilege or the work product doctrine. The defendant moved to compel production of the information on May 29, 1998, and the parties appeared before Judge Conlon on June 4, 1998. During the hearing, Judge Conlon found that most of the material at issue was neither work product nor privileged, and directed LAFC to produce nearly all of the disputed information. ( Defendant's Memorandum, Exs. C;D-1 (Minute Order of 6/04/1998)). She reserved judgment on one category of documents and, after an in camera review, ordered those to be produced as well. ( Defendant's Memorandum, Ex. D-2(Minute Order of 6/11/1998)).
At the close of the hearing, the parties raised the issue of a possible protective order, and Judge Conlon instructed them to try to reach an agreement. ( Defendant's Memorandum, Ex. E, at 32). Shortly thereafter, they agreed on the terms of two protective orders covering the information that Judge Conlon had ordered be produced. ( Defendant's Memorandum, at 4). In one, the parties agreed that the defendant's internal financial information ought to be protected as confidential. Not surprisingly, the defendant does not claim that this order was improvidently granted. In the other — the one at issue — the parties agreed that the LAFC's testing program information — much of which Judge Conlon ordered disclosed on June 4 and 11, 1998 — should also be treated as confidential. The parties moved for the entry of the two agreed protective orders on June 22, 1998. Judge Conlon granted these motions and entered the orders on June 25, 1998.
Ultimately, Judge Conlon granted summary judgment in favor of the defendant. The Seventh Circuit concluded that the plaintiffs could sue for violations of Title VII, but not section 1981. Once remanded, the case went to trial, with the jury finding in the defendant's favor. The plaintiffs appealed the verdict, while the defendant cross-appealed certain orders. In September 2001, the Seventh Circuit scheduled a settlement conference, which was ultimately successful in resolving the appeal, the cross-appeal, and two related cases.
On November 1, 2001, the defendant's present counsel wrote to LAFC's counsel informing him that pursuant to the protective order he was returning six boxes of documents LAFC had produced and that "to the extent LAFC produced documents that are not contained in these six boxes, those documents will be destroyed. . . ." Documents that were "entered into the record" during the case were apparently not included or destroyed. ( Defendant's Memorandum, Ex. J; Ex. F ¶ 7; Reply Memorandum, Exs. A, B).
In neither the opening nor the reply memorandum has the defendant made any attempt to account for its extraordinary delay in bringing the present motion. Nor was there any attempt made either in the motion to vacate or in the original or revised opening memorandum to explain the motivation for the defendant's resurgent interest in the protective order or to delineate precisely what harm the defendant has suffered from the order's continued existence. It is not until literally the last sentence of the reply brief that there was the slightest attempt to explain why the motion has been made.
The last sentence of the reply brief refers to an affidavit of the defendant's lawyer which states that he read a news report about a meeting involving, among others, EEOC Commissioners at which individuals "who were proponents of the use of employment testers were present and spoke." ( Reply brief, Ex. B, ¶ 4). See discussion infra at 18.
Although the opening memorandum is silent on the question, the reply memorandum finally reveals that, with the possible exception of four documents — all of which were created 10 to 15 years ago — the defendant has no documents in its possession that are subject to the protective order. Indeed, the defendant has gone to great lengths to demonstrate that it has complied with the requirement of the protective order that at the conclusion of the case, the defendant must return or destroyed all documents it obtained pursuant to the protective order, other than those that were used at trial or were otherwise part of the public record. ( Defendant's Memorandum, Ex. J; Reply Memorandum, at 2, 5, 8 and Exs. A, B and C).
No request is made that returned documents be retransmitted to the defendant, and no such relief could be granted.
For all that appears, the defendant has cast itself in the role of ombudsmen in what it contends is the public interest in vacating a protective order that it insists became invalid when the Seventh Circuit announced its decision on May 28, 1999 in Citizens First Nat. Bank of Princeton v. Cincinnati Insurance, Co., 178 F.3d 943 (7th Cir. 1999). If the defendant's ipse dixit that Cincinnati Insurance marked a "sea change" in the law relating to protective orders is correct — which it did not — the situation is mystifying. How does one explain why the defendant and its counsel were content to remain quiescent and obedient to what it now contends is an improvident and manifestly invalid order from June 1998 to May 2006? And if Cincinnati Insurance did not constitute a dramatic departure from its antecedents, there is absolutely no basis on which the defendant's unexplained and inexplicable tardiness can be condoned.
It is not merely tardiness that counsels denial of the motion. The defendant has failed to show good cause for vacating the protective order, and it appears from the reply brief that the documents the defendant desires to use consist of trial exhibits and other documents that were part of the public record and thus, are outside the scope of the protective order. ( Reply Memorandum, at 8). Hence, not only ought the protective order not be vacated, there is no reason to do so. As discussed below, if defendant truly wants to participate in some debate about the use of testers — which is the reason it ultimately suggests underlies the motion — it is absolutely free to do so. All the defendant cannot do is utilize confidential information provided under the protective order that did not find its way into the public record. But that is precisely what the defendant agreed to do in June 1998.
Wright Miller have observed that since discovery is designed to prepare for trial, "efforts to obtain access for non-litigation purposes may properly be reviewed less receptively by courts." 8 Wright, Miller Marcus, Federal Practice and Procedure, § 2044.1 at 582.
ANALYSIS A. The Defendant Has Failed To Meet Its Burden Of Demonstrating Good Cause For Vacating The Protective Order 1.
Just as good cause is required for issuance of a protective order under Rule 26(c), so too must good cause be shown before it can be vacated. The defendant does not deny that the burden is on the party seeking to vacate or modify the protective order to demonstrate good cause. Murata Manufacturing Co., Ltd. v. Bel Fuse Inc., 234 F.R.D. 175 (N.D.Ill. 2006) (collecting cases); Smartsignal Corp. v. Expert Microsystems, Inc., 2006 WL 1343647 (N.D.Ill. 2006). "Good cause" in this context implies changed circumstances or new situations; a continuing objection to the terms of a protective order does not constitute good cause to modify or withdraw it. Bayer AG and Miles, Inc. v. Barr Laboratories, Inc., 162 F.R.D. 456, 464 (S.D.N.Y. 1995); United States ex rel. Pogue v. Diabetes Treatment Centers of America, No. 99-3298, 2004 WL 2009414, *2 (D.D.C. May 17, 2004). Where, as here, a protective order is agreed to by the parties before its presentation to the court, there is a higher burden on the movant to justify the modification of the order. American Tel. Tel. Co. v. Grady, 594 F.2d 594, 597 (7th Cir. 1978).In Bayer, the court developed a standard — followed by a number of courts — under which four factors are considered in connection with a motion to vacate or modify a protective order: (1) the nature of the protective order; (2) the foreseeability, at the time of issuance of the order, of the modification requested; (3) the parties' reliance on the order; and most significantly (4) whether good cause exists for the modification. Id. at 462-63. The defendant's opening memorandum ignored the question of good cause; it was not until the last sentence of the reply memorandum that the concept was even mentioned, and then only in a conclusory way without any citation to any case.
The defendant' reply memorandum contends that it was foreseeable that "a motion like the present one" would be filed since the protective order states it can be modified by the parties and by order of court. ( Reply Memorandum, at 8). There is no citation to the protective order, and so far as my reading reveals, the order contains no such provision, although such a power is inherent in every order. Moreover, the concession of foreseeability undercuts the defendant's argument, for failure to deal with foreseeable situations in the order itself weakens the case for subsequent modification. See Bayer, 162 F.R.D. at 466; Jochims v. Isuzu Motors, Ltd., 145 F.R.D. 499, 502 (S.D.Iowa 1992).
The sum total of the argument is the unadorned conclusion that the materials in the court record should be discussed in public so that a claimed public debate about the use of testers is "informed." ( Reply Memorandum, at 8). There is no claim that the defendant has some sort of special knowledge to contribute to or even that it plans to involve itself in the claimed debate.
The defendant is mistaken in characterizing the protective order as a "blanket" order. Blanket protective orders extend protection to all documents without a showing of cause for confidentiality as to any particular document. Public Citizen v. Ligett Group, 858 F.2d 775, 790 (1st Cir. 1988). Where, however, the order protects specified documents that the court has determined should be protectable or covers "some properly demarcated category of legitimately confidential information out of the public record," Cincinnati Insurance Co., 178 F.3d at 946, the order is not a blanket protective order. Indeed, as Judge Posner stressed in Cincinnati Insurance, "[s]uch an order would be a far cry from the standardless, stipulated, permanent, frozen, overbroad blanket order" that was before the court in that case — an order so broad that it covered even documents that were part of the trial record. Id.
The June 25, 1998 protective order came in the wake of Judge Conlon's careful and extended consideration on June 4 and June 11, 1998 and her in camera review of at least certain of the documents. ( Defendant's Memorandum, Ex. D; Ex. E). Thus, the opening sentence of the protective order accurately stated that it was entered "[f]or good cause shown." ( Defendant's Memorandum, Ex. F). As a consequence of these hearings, she was keenly aware of what was to be covered by the order, which expressly limited its reach to the particular documents she ordered produced on those dates. That the order was intended to exclude from its reach documents that were or became part of the public record is beyond debate. Paragraph 1 necessarily excluded information that is part of the public record by defining confidential documents as including "all non-public documents or documents not previously disclosed which are produced by LAFC pursuant to the court's orders of June 4, 1998 and June 11, 1998." (Emphasis supplied). ( Defendant's Memorandum, Ex. F) (Emphasis supplied). The concluding sentence of Paragraph 1 further emphasizes the order's limited nature by providing that documents produced after the date of the order which contain information that has already been disclosed "shall not be deemed confidential." Paragraph 2 emphasizes that protected materials encompass only those "as defined herein. . . ."
Moreover, Cincinnati Insurance did not articulate some novel, transforming principle. In support of the overarching and controlling principle that the public interest in judicial proceedings precludes a court from allowing the parties to designate anything they choose as confidential, Judge Posner relied on a number of cases that preceded Cincinnati Insurance by almost a decade. These cases had clearly articulated the basic principle that the public interest in judicial proceedings can only be trumped by the property and privacy interests of the litigants if there is good cause for sealing a part or the whole of the record, and in making that determination the district court cannot "rubber stamp a stipulation to seal the record." Id. at 945. Even the First and Third Circuits, which at one time endorsed umbrella orders, Judge Posner noted, had moved away from that position. Id. at 946.
What troubled the court in Cincinnati Insurance was that the district court essentially "granted a virtual carte blanche to either party to seal whatever portions of the record the party wanted to seal." Id. at 944. This impermissible delegation resulted in a kind of permafrost that made it impermissible even for the parties to discuss documents that were trial exhibits. Id. at 945. Here, Judge Conlon did not grant the parties such unbridled authority. Instead, the protective order was explicitly limited to documents that were involved in the June 4th and 11th hearings, and it excluded documents that found their way into the public record.
The principles that animated Cincinnati Insurance were well known to Judge Conlon, as evidenced by her opinion in Plair v. E.J. Brach Sons, Inc, No. 94-244, 1996 WL 67975, *3 (N.D.Ill.Feb. 16, 1996), which proceeded the agreed protective order in this case by almost two and a half years. In response to a motion to modify the protective order as to allegedly confidential evidence filed under seal in the Court of Appeals, Judge Conlon noted that the Seventh Circuit had refused the motion to unseal certain sealed documents in the record on appeal, citing the Seventh Circuit's 1992 decision in In re Krynicki — which was also cited in Cincinnati Insurance. Judge Conlon demonstrated her sensitivity to the very principles the defendant's lawyer in this case says she abandoned:
"However, there are means other than blanket protective orders to protect the identity of non-litigants, such as coding documents and pleadings for identification purposes before filing them in the public record. See, e.g., Isaacson, 1992 WL 297391, at *5. In In re Krynicki, 983 F.2d 74 (7th Cir. 1992), the Seventh Circuit stressed that confidentiality orders must be narrowly tailored. `Confidentiality while information is being gathered not only protects trade secrets but also promotes disclosure. . . . Information that is used at trial or otherwise becomes the basis of decision enters the public record.' Id. at 75. The court [of appeals] reasoned:
`What happens in the halls of government is presumptively open to public scrutiny. Judges deliberate in private but issue public decisions after public arguments based on public records. The political branches of government claim legitimacy by election, judges by reason. Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat; this requires rigorous justification.' Id. at 75.
"Hence, blanket protective orders permitting all documents to be designated confidential are generally not appropriate. Id. at 76-78."Plair v. E.J. Brach Sons, Inc, 1996 WL 67975 at *3. See also Methodist Hospitals, Inc. v. Sullivan, 91 F.3d 1026, 1031-1032 (7th Cir. 1996).
2.
The contention that the protective order is facially invalid because it extends beyond "the trial" of the case is frivolous. ( Defendant's Memorandum, at 6). Protective orders exist because of the potential for abuse that exists in the discovery process. Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984). If the life of protective orders were measured by the duration of the case, all that would be accomplished would be postponement, not preclusion of public revelation. But, it is the non-disclosure to the public, not the timing of disclosure, that is critical. Rule 26(c)(7) empowers the court to order that designated categories "not be revealed"-not that they not be revealed "until the trial is over." The defendant's theory would read into the Rule a limitation not found either in its text or its history. But judges are not at liberty to engraft onto statutes exceptions or limitations Congress chose not to create. Honig v. Doe, 484 U.S. 305, 325 (1988); Harris v. Garner, 216 F.3d 970, 976 (7th Cir. 2000).Neither Cincinnati Insurance nor any other reported decision pretends to suggest that an order that is not coterminous with the conclusion of the trial (or the case itself) is invalid. The concern of the court in Cincinnati Insurance was that the order extended to documents that were in the public record, such as trial exhibits. It was in this context that the court spoke of the order as "permanent," and it is this context that the defendant has ignored despite Judge Posner's oft-repeated caution that "it is a disservice to judges and a misunderstanding of the judicial process to wrench general language in an opinion out of context." See also Penry v. Lynaugh, 492 U.S. 302, 358 (1989) (Scalia, J., concurring and dissenting in part); Wisehart v. Davis, 408 F.3d 321, 326 (7th Cir. 2005) (Posner, J.) ("Judges expect their pronunciamentos to be read in context. . . ."); Aurora Loan Services, Inc. v. Craddieth, 442 F.3d 1018 (7th Cir. 2006).
Felling v. Knight, 211 F.R.D. 552 (S.D.Ind. 2003), on which the defendant relies, demonstrates the invalidity of the defendant's contention. There, the court vacated a protective order at the request of the media, not because the case was over, but because sufficient time had passed so that public interest in the case had waned, and thus disclosure of videotape depositions of the defendant no longer posed a threat of embarrassment to him. Id. at 554-555. If the defendant's argument in this case were correct, the media would have been automatically entitled to Bobby Knight's depositions at the conclusion of the case, and the court in Felling would not have found it necessary to determine whether the initial basis on which the order had been issued was still valid. Chronology, not good cause, would have controlled the outcome of the case. In the instant case there is no showing that the passage of time has removed the underlying justification for the protective order, namely the need for confidentiality.
Finally, the filing of an appeal by the plaintiff did not of its own force terminate the protective order. Documents that became part of the public record were, of course, outside its scope. Those that did not find their way into the public record remain within the scope of the order. Cf. Seventh Circuit Operating Procedures, No. 10. Pleadings and trial exhibits filed with the court of appeals are not covered by Judge Conlon's order, whatever the defendant may think. ( Reply Memorandum, at 2). Cf. Levenstein v. Salafsky, 164 F.3d 345, 347 (7th Cir. 1998); Methodist Hospitals, Inc. v. Sullivan, 91 F.3d 1026, 1031-1032 (7th Cir. 1996). That does not mean, however, that documents that are otherwise within the protective order and that did not become part of the public record should now be disclosed — although how the defendant could disclose the documents is difficult to discern given its insistence that all nonpublic documents were returned in November 2001. ( Defendant's Memorandum, Ex. J; Reply Memorandum, Ex. 1).
The soundness of a conclusion may not infrequently be tested by its consequences. Posner, Cardozo: A Study in Reputation, 118 (1990). See also Florida Power Light Co. v. United States Nuclear Regulatory Commission, 470 U.S. 729, 741 (1985). An examination of the consequences that would follow upon adoption of the theory proposed by the defendant demonstrates its intrinsic unsoundness. If the defendant is right, the second protective order that covered its confidential financial information automatically terminated the moment the case (perhaps even the trial) was completed, and plaintiff was free to disseminate all that information. And, under the defendant's theory, notwithstanding an agreed protective order, the most carefully guarded trade secret could in any case be revealed to the world the moment the case was over and even if the owner of the secret was the prevailing party in the litigation. Both precedent and principle recoil at such a result.
3.
The argument that Judge Conlon's protective order is invalid because the information was not a trade secret is a nonstarter. Rule 26(c)(7) authorizes the court to enter an order that "a trade secret or other confidential research, development or commercial information not be revealed or be revealed only in a designated way." (Emphasis supplied). The Federal Rules of Civil Procedure, which have the force of statutes, Zapata Hermanos Sucesores, S.A. v. Hearthside Baking Co., Inc., 313 F.3d 385, 392 (7th Cir. 2002), cert. denied, 540 U.S. 1068 (2003), are to be accorded "their plain meaning . . . and generally with them, as with a statute, `[w]hen we find the terms . . . unambiguous, judicial inquiry is complete. . . .'" Pavelic LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 123 (1989). Cincinnati Insurance confirms protective orders are not limited to trade secrets: "There is no objection to an order that allows the parties to keep their trade secrets (or some other properly demarcated category of legitimately confidential information) out of the public record. . . ." 178 F.3d at 946 (parenthesis in original). "Courts could not function effectively in cases involving sensitive information — trade secrets, medical files and minors, among many others — if they lacked the power to limit the use parties could make of sensitive information obtained from the opposing party by invoking the court's authority." Bittaker v. Woodford, 331 F.3d 715, 726 (9th Cir. 2003). See also Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) (protective order issued to protect the First Amendment rights of members of and donors to the Aquarian Foundation to privacy, freedom of religion, and freedom of association); Baxter International, Inc. v. Abbott Laboratories, 297 F.3d at 545 (trade secrets or other categories of bona fide long-term confidentiality); United States ex rel. Chandler v. Cook County, 277 F.3d 969, 981 (7th Cir. 2002) (confidentiality of patient records of those involved in drug and alcohol treatment programs); In re High Fructose Corn Syrup Antitrust Litigation, 216 F.3d 621, 624 (7th Cir. 2000) (contents of recordings that infringe the privacy of parties beyond what plaintiffs require to prosecute their case effectively).
4.
It is important to recall that the defendant agreed to the entry of the order. They need not have done so, but having done so, their agreement ought not be blithely cast aside. In Longman v. Food Lion, Inc., 186 F.R.D. 331, 334 (M.D.N.C. 1999), the court rejected a public access argument from a party that had agreed to the terms of a protective order, thereby bargaining such an argument away. Id. at 334. The defendant is no better position here; in fact, the defendant does not even go as far as the movants in Longman or Felling.
The defendant's attempt to disavow their own agreement is based on the fact that the materials covered by the protective order were ordered produced by Judge Conlon and therefore the plaintiff could not have relied on the order. ( Reply Memorandum, at 3). Beyond this, the fact that Judge Conlon ordered the documents produced does not mean that there could not be reliance on the order by the plaintiff. After all, the defendant did not have to agree on the order and could have insisted on production of the documents. It would then have been left to the court to determine whether the documents were confidential and to have imposed her own protective order.
The internal tension between the defendant's "blanket order" thesis and its reliance on Judge Conlon's involvement to refute the plaintiff's reliance on the protective order is obvious. It is "Judge Conlon's involvement in the production of these materials" that in part distinguishes this case from Cincinnati Insurance.
The defendant chose a different course. It negotiated and agreed to an order that it now seeks to repudiate. Parties to litigation like parties to commercial transactions ought to be bound by their agreements absent good reason to excuse them. In a commercial setting, a party has an option to perform or pay damages. Zapata Hermanos Sucesores, S.A., 313 F.3d at 389-390. That option does not exist in a setting such as this; all there is is the obligation to abide by what one agreed to do in the first instance. This is not to say that agreed protective orders can never be vacated or modified. They can, but only for good cause. The plaintiff relied on the defendant's voluntary agreement, and good cause has not been shown by the defendant to allow it to get out of its promise.
B. The Defendant Has Not Shown That The Continued Existence Of The Protective Order Has Caused Or Will Cause It Harm
It is not until the reply brief that the defendant's real position emerged. There, we are finally told that it is documents in the public record about which the defendant is concerned: "As the documents at issue, such as the trial exhibits, are in the judicial record, they should be [sic] or cannot be the subject to a protective order once an appeal is filed absent the request of a party . . . The upshot of Plaintiffs' position is the incomprehensible one — Defendant and Defendant alone among all the world is unable to discuss documents in the public record. Since the June 25, 1998 protective order does not bind anyone else in the universe, it should be vacated as to the Defendant." ( Reply Memorandum, at 5) (Emphasis supplied). This argument is mystifying and self-defeating. It rests on the unarticulated, faulty premise that Judge Conlon's protective order extends to matters that have been publicly disclosed. Quite apart from Judge Conlon's sensitivity to the impermissibility of such an order, Plair v. E.J. Brach Sons, ( see also Cincinnati Insurance, 178 F.3d at 946) the plain language of the order makes clear its limited reach. See supra at 8-9. The defendant's parsing of the protective order leads to nonsensical results — which are always to be avoided in construing any written document, whether it be a contract or a statute or a court order. Cf. Beanstalk Group. Inc. v. AM General Corp., 283 F.3d 856 (7th Cir. 2002); Olvera v. Blitt Gaines, P.C., 431 F.3d 285, 289 (7th Cir. 2005).
An agreed protective order may be viewed as a form of contract in the sense that an agreed consent order is a form of contract. Cf. Autotech Technologies Limited Partnership v. Automationdirect.com, Inc., 2006 WL 1304949 at *4-5 (N.D.I11. 2006).
The record as developed by the defendant reveals the following: 1) Judge Conlon's protective order by its plain terms applies only to nonpublic materials that were produced pursuant to the court's orders of June 4, 1998 and June 11, 1998. ( Defendant's Memorandum, Ex. F, ¶ 1); 2) the motion to vacate is "limited"; 3) "the documents at issue," (with four exceptions) all became "trial exhibits" — ( Reply Memorandum, at 2, 5, 7; Ex. A, ¶ 6); 4) the defendant has returned all of the documents turned over pursuant to the protective order ( Reply Memorandum, at 1, 2); and 5) there was no motion to seal any part of the record in the court of appeals, thereby making those documents public. ( Reply Memorandum, at 5).
The four documents are agendas for LAFC Board of Directors meetings for March 6, 1991, January 5, 1994, and November 6, 1996 and a response to EEOC Solicitation Number 9714 with attachments. None of these documents were stamped confidential, but were turned over pursuant to the protective order and did not make their way into the public record. ( Reply Memorandum, at 2, 4; Ex. A).
The plaintiff's apparent suggestion that the defendant has retained documents that it received under the protective order is branded in the reply as an "Unfounded Fear." ( Reply Memorandum, at 1).
Since a showing of good cause requires a demonstration of specific prejudice or harm before a protective order can be issued, Rivera v. NIBCO, Inc. 384 F.3d 822, 827 (9th Cir. 2004); Autotech Technologies Limited Partnership v. Automationdirect.com, Inc., 235 F.R.D. 435, 440 (N.D.Ill. 2006), it follows that the same showing is a prerequisite to modification or vacation of a protective order. The ipse dixit of counsel that there has been harm will not suffice. See Rivera, supra.; In re Terra Intern., Inc., 134 F.3d 302, 306 (5th Cir. 1998); Glenmede Trust Co. v. Thompson, 56 F.3d 476, 484 (3rd Cir. 1995) ("Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning do not support a good cause showing."). There must be a particularized and specific demonstration of fact. Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n. 16 (1981); 8 C. Wright A. Miller, § 2035, at 265.
In light of the factual presentation made in the reply memorandum, it is exceedingly difficult to understand exactly how the defendant has been or will be harmed if the order is not vacated. The defendant does not need the relief it seeks in order to use, in whatever way it chooses, trial exhibits and other documents that are part of the public record. Nor does the order prohibit the defendants from participating in any debate in whatever way it deems appropriate.
The defendant's (apparent) attempt to show good cause — and implicitly harm — consists in its entirety of this conclusory statement at the very end of the reply memorandum:
"The advocates of employment testing have again placed this tactic on the national agenda. See Affidavit of Douglas Darch. The materials in the Court record should be discussed in public, so the current public debate is informed." ( Reply Memorandum, at 8).
This sort of sketchy and conclusory presentation is insufficient to demonstrate either a change in circumstances or the harm that must be shown before a protective order — especially an agreed protective order — can be vacated. The relevant portion of the two-page affidavit contains this cryptic and uninformative sentence:
Prior to filing the Motion to Vacate Protective Order, I read a news report about a meeting involving inter alia, the EEOC's Commissioners, at which individuals who were proponents of the use of employment testers were present and spoke. ( Reply Memorandum, Ex. B, ¶ 4).
This single sentence does virtually nothing to support the conclusions in the reply memorandum that there is a "debate," that it is current, that it is public, or that the advocates of employment testing have placed the issue on the "national agenda" (whatever that means). All that we know is that at some undisclosed time in the past, Mr. Darch claims he read a news article about a meeting. He is careful not to say when he read it, where it appeared, what was reported, when the meeting occurred, what its purposes were, how many people were in attendance, who was present besides the EEOC's Commissioners, who spoke, the topics on which they spoke and whether the "tactic" of using testers was part of the program or even a topic of discussion. It does not follow that individuals who are proponents of the use of employment testers necessarily spoke on that topic or that that topic was even discussed by anyone — although that is certainly the inference that is sought to be left.
If the article did not explain anything beyond what is in the affidavit, Mr. Darch should have said so. "Honesty of purpose prompts frankness of statement." Crosby v. Buchanan, 90 U.S. 420, 457 (1875). If the article was more comprehensive and supportive of Mr. Darch's conclusions, it would have been easy enough for Mr. Darch to have provided the appropriate information so that the conclusions in his affidavit could be assessed. He chose not to, and a court is not required — indeed it is not permitted — to engage in tendentious speculation about that which an affiant has not set forth with the requisite specificity.
C. The Defendant's Motion Should Be Denied As Untimely
The underlying case was concluded in all respects nearly five years ago; all the protected information was either destroyed or returned more than four and a half years ago — at least so far as the record reveals. And perhaps most importantly, Cincinnati Insurance was decided in 1999 long before the underlying case ended. If that case signaled a "sea change" in the law regarding protective orders, it would not have passed undetected by the defendant's veteran lawyer. Certainly, he was aware of the case not later than three years ago through his representation of the defendants in Pease v. Production Workers of Chicago and Vicinity Local 707, 2003 WL 22012678 at *9 (N.D.Ill. Aug. 25, 2003) in which the court cited Cincinnati Insurance.
The defendant's reply brief does not contend that the defendant has in its possession any documents covered by the protective order.
Significantly, the defendant's counsel is careful not to say that he was unaware of Cincinnati Insurance in 1999 when it was announced or that it only recently came to his attention.
Although there may be no bright-line time limit for the filing of a motion to vacate a protective order, some guideposts do exist. While defendant does not suggest that its motion is brought under Rule 60(b) — the defendant does not mention any Federal Rule of Civil Procedure that might authorize it — that rule, which provides an avenue for relief from a court order, can at least supply a benchmark as to the timing of such motions. Under Rule 60(b), parties are given only a "reasonable time" in which to act, and this sometimes may be less than one year in certain circumstances specified under the rule. Central States, Southeast and Southwest Areas Pension Fund v. Central Cartage Co., 69 F.3d 1312, 1314 (7th Cir. 1995). The concept of reasonableness eludes articulation in a formula in this context just as it does in determining when a motion to compel is barred because of unreasonable delay. Cf. In re Sulfuric Acid Antitrust Litigation, 231 F.R.D. 331, 333 (N.D.Ill. 2005). But in the absence of some explanation for the delay, the passage of seven years from the date Cincinnati Insurance was announced to the filing of the motion to vacate, constitutes unreasonable delay, warranting denial of the motion.
CONCLUSION
Perhaps in the end, the motion to vacate was unnecessary: the defendant has, it claims, no documents in its possession that were turned over pursuant to the protective order except those that became trial exhibits or were otherwise "in the Court record." The defendant itself has characterized its motion to vacate as a "limited" one which seeks merely to ensure that the defendant can discuss documents in the public record." ( Reply Memorandum, at 5, 7, 8) (Emphasis supplied). But all such documents are already outside the scope of the protective order, and thus there is no reason that it should be vacated. These documents are as available to the defendant as they are to the rest of the world.
As to the 1991, 1994 and 1996 Agendas and a document submitted to the EEOC in 1997, ( supra., n. 11; Reply Memorandum at 2; Ex. A, ¶ 6), these do not appear to have become trial exhibits and were not marked confidential — at least according to the defendant, and the plaintiff has not asked for leave to file a surreply to contest this assertion. This does not mean, however, that these documents were not turned over pursuant to the protective order — and the defendant does not claim that they were not. Hence, they remain covered by the order, as does a videotape apparently reflecting mock tester interviews, which was not marked confidential. ( Id. at Ex. A, ¶ 7).
An argument can be advanced that disclosure of documents not marked confidential would not be "technically" in violation of the protective order. Greviskes v. Universities Research Association, Inc., 417 F.3d 752, 758 (7th Cir. 2005). This is not to say, however, that a mistaken failure in designation allows public dissemination. The plaintiff does not deny that these materials were provided under the protective order, and there is simply not enough evidence to conclude that the order should not apply to them. In fact, the defendant has recently returned the documents to the plaintiff. ( Reply Memorandum, Ex. B at ¶ 8).
It is respectfully recommended that the defendant's motion to vacate the protective order entered June 25, 1998 [#200] be DENIED.
Any objections to the Report and Recommendation must be filed with the Clerk of the Court within ten days of receipt of this Report and Recommendation. Failure to file objections within the specified time waives the right to appeal the Report and Recommendation. See Fed.R.Civ.P. 72(b); 28 U.S.C. 636(b)(1)(C); Lorentzen v. Anderson Pest Control, 64 F.3d 327, 329 (7th Cir. 1995).