Opinion
Cause No. 3:04-CV-134 AS.
June 2, 2005
ORDER AND OPINION
Defendant Allstate Insurance Company filed a proposed agreed confidentiality order on May 31, 2005, requesting that this Court issue a confidentiality order covering various information in the underlying litigation. For the following reasons, this Court declines to adopt and sign Defendant's proposed confidentiality order. Defendant may resubmit a proposed confidentiality order which comports with Seventh Circuit precedent for this Court's consideration.
I. APPLICABLE STANDARD
When granting a proposed protective order, this Court must independently determine whether "good cause" exists to seal the requested information from the public record. Fed.R.Civ.P. 26(c);Citizens First National Bank of Princeton v. Cincinnati Insurance Co., 178 F.3d 943, 944 (7th Cir. 1999). In doing so, this Court must not grant parties carte blanche to seal or protect whatever they desire. Citizens, 178 F.3d at 944; See also Pierson v. Indianapolis Power Light Co., 205 F.R.D. 646, 647 (S.D. Ind. 2002) ("Independent and careful evaluations of protective orders are especially important because `[t]he judge is the primary representative of the public interest in the judicial process. . . .'") (quotingCitizens, 178 F.3d at 945). In other words, this Court cannot serve as a rubber stamp whenever parties wish to seal public records, but must review all requests to seal documents in light of the public interest in the judicial process. Citizens, 178 F.3d at 945 (citing In re Krynicki, 983 F.2d 74 (7th Cir. 1992); Miller, Arthur M., Confidentiality, Protective Orders, and Public Access to the Courts, 105 Harv. L.Rev. 427, 492 (1991)).
When reviewing an agreed protective order seeking to seal documents produced in discovery, this Court must ensure that "(1) the information sought to be protected falls within a legitimate category of confidential information, (2) the information or category sought to be protected is properly described or demarcated, (3) the parties know the defining elements of the applicable category of confidentiality and will act in good faith in deciding which information qualifies thereunder, and (4) the protective order explicitly allows any party and any interested member of the public to challenge the sealing of particular documents." Pierson, 205 F.R.D. at 647 (citing Citizens, 178 F.3d at 946). This Court may issue a protective order in this case pursuant to its referral order and 28 U.S.C. § 636(b)(1)(A).
II. ANALYSIS
Defendant's proposed order falls short of the above standard for two reasons. First, Defendant fails to adequately describe which documents are to be protected; and second, the order contains no language explicitly allowing interested members of the public to challenge the sealing of particular documents.
A. Proper Description of Documents
This Court's evaluation of proposed protective orders for good cause need not be made on a document-by-document basis.Citizens, 178 F.3d at 946 ("In a case with thousands of documents, such a requirement might impose an excessive burden on the district judge or magistrate judge."). Parties may "keep their trade secrets (or some other properly demarcated category of legitimately confidential information) out of the public record, provided the judge . . . 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 trade secrets." Id.
Defendant's proposed order falls short of this standard. The proposed order seeks to give the parties carte blanche over any documents which they deem confidential. Paragraph (b) states:
"Confidential information" as used herein means any type or classification of information that is designed as confidential by the supplying party, whether it be a document, information contained in a document, information revealed during a deposition, information revealed in an interrogatory answer, or otherwise.
As it stands, Defendant's proposed order does not limit protected documents to discrete categories by date, source, contents, or any other means, but rather seeks to expand the order's reach to any document a party believes is protected. The proposed order covers documents without specific limitations as to what material is protected. It simply fails to provide sufficient protection against improper sequestration of public records. For the proposed document to comport with circuit precedent and the Federal Rules, Defendant needs to limit the order in scope to ascertainable categories, demonstrating that the protected information is in fact confidential and protected in good faith.
B. Ability of any Interested Member of the Public to Challenge the Sealing of Particular Documents
"The right to intervene to challenge a closure order is rooted in the public's well-established right of access to public proceedings." Jessup v. Luther, 227 F.3d 993, 997 (7th Cir. 2000). In granting protective orders, judges are thus "the primary representative[s] of the public interest in the judicial process" and must require that a "protective order explicitly allows any party and any interested member of the public to challenge the sealing of particular documents." Pierson, 205 F.R.D. at 647 (citing Citizens, 178 F.3d at 945-46). In paragraph ten, Defendant allows a party to challenge the sealing of documents. However, Defendant has failed to include in this paragraph any provision which would explicitly allow any interested member of the public to challenge the sealing of particular documents.
III. CONCLUSION
Because it is overbroad in scope and fails to explicitly express that any interested member of the public may challenge the sealing of particular documents, this Court declines to adopt and sign Defendant's proposed confidentiality order submitted on May 31, 2005 [Doc. No. 26]. Defendant may resubmit its proposed order in light of the standards set forth in this order and the citations herein.