Rubenstein v . Circuit City Stores CV-97-484-SD 6/24/98 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Barry Rubenstein
v. Civil No. 97-484-SD
Circuit City Stores, Inc.
PROTECTIVE ORDER
In this diversity action, plaintiff Barry Rubenstein seeks damages from his former employer, Circuit City Stores. Currently at issue is a discovery dispute arising from plaintiff's request for production of documents. Circuit City seeks a protective order covering documents it considers confidential. Although Rubenstein has agreed to sealing the documents, he objects to sealing any court pleadings and asks the court to compel Circuit City to produce the documents at issue.
The relevant Federal Rule of Civil Procedure provides:
Upon motion by a party . . . and for good cause shown, the court in which the action is pending . . . may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the disclosure or discovery not be had; (2) that the disclosure or discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the disclosure or discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition, after being sealed, be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a designated way; and (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.
Rule 26(c), Fed. R. Civ. P.
"A plain reading of the language of Rule 26(c) demonstrates that the party seeking a protective order has the burden of showing that good cause exists for issuance of that order. It is equally apparent that the obverse also is true, i.e., if good cause is not shown, the discovery material in question should not receive judicial protection and therefore would be open to the public for inspection. . . . Any other conclusion effectively would negate the good cause requirement of Rule 26(c): Unless the public has a presumptive right of access to discovery materials, the party seeking to protect the materials would have no need for a judicial order since the public would not be allowed to examine the materials in any event." Public Citizen v . Ligget Group, Inc., 858 F.2d 775, 789 (1st Cir.
1988) (quoting In re Agent Orange Prod. Liab. Litig., 821 F.2d
139, 145-46 (2d Cir. 1987)).
Thus the court will seal the discovery documents only to the
extent that the defendant has shown good cause. "'Judges must
guard against any notion that the issuance of protective orders
is routine, let alone automatic, even when the application is
supported by all parties.'" Nault's Auto. Sales v . American
Honda Motor Co., 148 F.R.D. 25, 44 (D.N.H. 1993) (quoting Arthur
R. Miller, Confidentiality, Protective Orders, and Public Access to the Courts, 105 Harv. L . Rev. 427, 492 (1991)). The
protection of trade secrets is good cause for the sealing of
documents. The court finds, however, that the definition of
confidential information contained in the defendant's proposed
protective order is far too broad. Circuit City would include
"any document referring in any manner to any customer or
potential customer of the defendant, defendant's employment
practices, or other business related information. . . . "
[Proposed] Protective Order at 2 (attached to Defendant's Motion
for Protective Order). This definition would cover all documents
produced by Circuit City. Circuit City has not shown good cause
for such a broad protective order. Accordingly, the court will
limit the protective order to bona fide trade secrets, as defined
by applicable federal and state law.
The main point of contention is whether, and to what extent,
the pleadings should be sealed. "The common law presumes a right
of public access to judicial records." Siedle v . Putnam
Investments, Inc., 1998 WL 309277, *3 (1st Cir. 1998). However,
"[i]mportant countervailing interests can, in given instances,
overwhelm the usual presumption and defeat access." Id. In this
case, to be effective, the protection against revealing
confidential information must extend to such information quoted
in or appended to court filings. Thus, to the extent plaintiff
repeats confidential information or appends such information to
its pleadings or memoranda, that portion of the filing shall be
3 submitted under seal. Consideration of the right of public
access dictates that pleadings be sealed only to the extent
absolutely necessary. Thus this requirement will not apply to
entire filings, but only to the portion containing confidential
information.
In accordance with the above, the court finds good cause
exists for the issuance of a protective order. In response to
plaintiff's first (document 8 ) and second (document 18) motions
to produce and defendant's motion for protective order (document
1 0 ) , the court orders the defendant to produce the documents and
answer plaintiff's interrogatories subject to the following:
1. Information Subject to Protective Order. Documents or
information produced by a party (or a party's agent or
representative), or on behalf of a party, during discovery, by
way of answers to interrogatories, production of documents,
depositions, responses to requests for admissions, subpoena duces
tecum, or other discovery devices, or for use at trial,
designated as Confidential Information, as defined below, shall
be subject to the provisions of this protective order. The
parties expressly recognize that such documents and information
may include, but are not limited to, documents and information
that contain trade secrets and information in which current and
former employees have a privacy interest.
2. Definition of Document. For purposes of this protective
order, the term Document shall mean and include those items
4 specifically set forth at Rule 34(a) of the Federal Rules of
Civil Procedure, and shall further mean, without limitation,
documents produced by a party (or any of a party's employees,
former employees, or agents) in this action pursuant to court
rules or orders, subpoenas, agreements of the parties or
otherwise, deposition transcripts and exhibits, and any portions
of any court papers which quote from or paraphrase any of the
foregoing. The term Document shall refer to the original and any
copies.
3. Definition of Confidential Information. For purposes of
this protective order, the term Confidential Information means
any trade secret as defined by applicable state and federal laws
or a medical record of a party, which is designated in good faith
as confidential by that party, whether a document, information
revealed during a deposition, information called for in response
Free access — add to your briefcase to read the full text and ask questions with AI
Rubenstein v . Circuit City Stores CV-97-484-SD 6/24/98 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Barry Rubenstein
v. Civil No. 97-484-SD
Circuit City Stores, Inc.
PROTECTIVE ORDER
In this diversity action, plaintiff Barry Rubenstein seeks damages from his former employer, Circuit City Stores. Currently at issue is a discovery dispute arising from plaintiff's request for production of documents. Circuit City seeks a protective order covering documents it considers confidential. Although Rubenstein has agreed to sealing the documents, he objects to sealing any court pleadings and asks the court to compel Circuit City to produce the documents at issue.
The relevant Federal Rule of Civil Procedure provides:
Upon motion by a party . . . and for good cause shown, the court in which the action is pending . . . may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the disclosure or discovery not be had; (2) that the disclosure or discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the disclosure or discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition, after being sealed, be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a designated way; and (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.
Rule 26(c), Fed. R. Civ. P.
"A plain reading of the language of Rule 26(c) demonstrates that the party seeking a protective order has the burden of showing that good cause exists for issuance of that order. It is equally apparent that the obverse also is true, i.e., if good cause is not shown, the discovery material in question should not receive judicial protection and therefore would be open to the public for inspection. . . . Any other conclusion effectively would negate the good cause requirement of Rule 26(c): Unless the public has a presumptive right of access to discovery materials, the party seeking to protect the materials would have no need for a judicial order since the public would not be allowed to examine the materials in any event." Public Citizen v . Ligget Group, Inc., 858 F.2d 775, 789 (1st Cir.
1988) (quoting In re Agent Orange Prod. Liab. Litig., 821 F.2d
139, 145-46 (2d Cir. 1987)).
Thus the court will seal the discovery documents only to the
extent that the defendant has shown good cause. "'Judges must
guard against any notion that the issuance of protective orders
is routine, let alone automatic, even when the application is
supported by all parties.'" Nault's Auto. Sales v . American
Honda Motor Co., 148 F.R.D. 25, 44 (D.N.H. 1993) (quoting Arthur
R. Miller, Confidentiality, Protective Orders, and Public Access to the Courts, 105 Harv. L . Rev. 427, 492 (1991)). The
protection of trade secrets is good cause for the sealing of
documents. The court finds, however, that the definition of
confidential information contained in the defendant's proposed
protective order is far too broad. Circuit City would include
"any document referring in any manner to any customer or
potential customer of the defendant, defendant's employment
practices, or other business related information. . . . "
[Proposed] Protective Order at 2 (attached to Defendant's Motion
for Protective Order). This definition would cover all documents
produced by Circuit City. Circuit City has not shown good cause
for such a broad protective order. Accordingly, the court will
limit the protective order to bona fide trade secrets, as defined
by applicable federal and state law.
The main point of contention is whether, and to what extent,
the pleadings should be sealed. "The common law presumes a right
of public access to judicial records." Siedle v . Putnam
Investments, Inc., 1998 WL 309277, *3 (1st Cir. 1998). However,
"[i]mportant countervailing interests can, in given instances,
overwhelm the usual presumption and defeat access." Id. In this
case, to be effective, the protection against revealing
confidential information must extend to such information quoted
in or appended to court filings. Thus, to the extent plaintiff
repeats confidential information or appends such information to
its pleadings or memoranda, that portion of the filing shall be
3 submitted under seal. Consideration of the right of public
access dictates that pleadings be sealed only to the extent
absolutely necessary. Thus this requirement will not apply to
entire filings, but only to the portion containing confidential
information.
In accordance with the above, the court finds good cause
exists for the issuance of a protective order. In response to
plaintiff's first (document 8 ) and second (document 18) motions
to produce and defendant's motion for protective order (document
1 0 ) , the court orders the defendant to produce the documents and
answer plaintiff's interrogatories subject to the following:
1. Information Subject to Protective Order. Documents or
information produced by a party (or a party's agent or
representative), or on behalf of a party, during discovery, by
way of answers to interrogatories, production of documents,
depositions, responses to requests for admissions, subpoena duces
tecum, or other discovery devices, or for use at trial,
designated as Confidential Information, as defined below, shall
be subject to the provisions of this protective order. The
parties expressly recognize that such documents and information
may include, but are not limited to, documents and information
that contain trade secrets and information in which current and
former employees have a privacy interest.
2. Definition of Document. For purposes of this protective
order, the term Document shall mean and include those items
4 specifically set forth at Rule 34(a) of the Federal Rules of
Civil Procedure, and shall further mean, without limitation,
documents produced by a party (or any of a party's employees,
former employees, or agents) in this action pursuant to court
rules or orders, subpoenas, agreements of the parties or
otherwise, deposition transcripts and exhibits, and any portions
of any court papers which quote from or paraphrase any of the
foregoing. The term Document shall refer to the original and any
copies.
3. Definition of Confidential Information. For purposes of
this protective order, the term Confidential Information means
any trade secret as defined by applicable state and federal laws
or a medical record of a party, which is designated in good faith
as confidential by that party, whether a document, information
revealed during a deposition, information called for in response
to an interrogatory, or otherwise.
4. Designation of Confidential Information. All written
information, or any portion, supplied or designated by any party
as Confidential Information shall be so designated by placing on
each page (or as otherwise agree by counsel in writing) a stamp
or other notice stating "CONFIDENTIAL" in a manner that will not
interfere with the legibility of the written information.
5. Information at Depositions. Information disclosed at
the deposition of a witness, a party or one of its present or
former officers, directors, employees, or independent consultants
5 may be designated by a party as Confidential Information by
indicating on the record at the deposition, or notifying all
parties within 10 days of receipt of the deposition transcript,
that the testimony is Confidential Information and subject to the
provisions of this protective order.
6. Use of Confidential Information. Except upon the
written consent of counsel for the party that has designated the
Confidential Information, or upon order of this court for good
cause shown, Confidential Information shall not be disclosed to
any other person other than the following "Qualified Parties":
(a) judicial personnel and members of their staff;
(b) the parties' counsel, and the employees or independent
contractors of counsel assisting in the preparation of this
litigation;
(c) the parties;
(d) deposition and trial witnesses;
(e) court reporters who record depositions or other
testimony in this case. Except for court personnel and counsel,
the Qualified Party to whom Confidential Information will be
disclosed shall first execute a copy of an affidavit
acknowledging receipt of this protective order and agreement to
be bound by its terms.
7. Limitation on Use. Each party's use of Confidential
Information is expressly limited to such use and disclosure as
may be required by the party in the prosecution or defense of
6 this action, subject to the terms and conditions of this
protective order. No party shall use or disclose any
Confidential Information or any summary or portion of
Confidential Information, in any form, whether written, oral, or
otherwise, except as expressly set forth in this protective
order.
8. Filing of Confidential Information; Use at Trial or
Hearing. All Confidential Information subject to confidential
treatment in accordance with the terms of this protective order
that is filed with the court, and any portion of pleadings,
motions or other papers filed with the court disclosing any such
Confidential Information shall be filed under seal in sealed
envelopes or other appropriate sealed containers. Each sealed
envelope or container shall be endorsed with the title of the
action, the words "CONFIDENTIAL UNDER COURT ORDER," and shall be
filed under seal and kept under seal until further order of the
court.
9. Conclusion of Action. All parties' counsel shall,
within 30 days of the final termination of this action, assemble
and return to the producing party (or dispose of it as otherwise
agree upon by counsel in writing) all Confidential Information
and copies, including Confidential Information which a party or
its counsel have disseminated or disclosed to any Qualified
Person.
7 10. No Effect on Admissibility. Nothing contained in this
Protective Order shall operate as an admission or assertion by
any party or a witness that any particular document or
information is admissible into evidence, and no objection to
production or admissibility is waived by this order.
11. Relief. Nothing in this Order shall be construed so as
to waive or otherwise compromise an opposing party's right to
contest any particular designation for specific documents or
other materials and to remove the particular designation.
However, this order shall apply to all such documents and
materials so designated until such time as the court determines
that any designated documents or other materials are not
confidential and do not warrant the protection provided by this
order or the Federal Rules of Civil Procedure.
12. Sanctions. Any Qualified Party receiving Confidential
Information who violates this protective order shall be
sanctioned in a manner to be determined by the court.
SO ORDERED.
Shane Devine, Senior Judge United States District Court June 2 4 , 1998 cc: Eleanor H . MacLellan, Esq. Barry Needleman, Esq. Philip J. Moss, Esq.