36 Trial Lawyer • Winter 2024 Kimberly Weingart By Kimberly Weingart OTLA Guardian “No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation.” Oregon Constitution, Article 1, Section 10. If you are practicing in the field of plaintiff’s personal injury law, chances are you’ve seen a number of defense-proposed Stipulated Protective Orders float through your inbox this year, maybe even a dozen or two, depending on your volume and type of practice. If you’ve seen a few of these, you know that they come with the not-so-subtle threat: “Sign here or we’ll never give you the discovery you need to advance your case!” As a newer attorney, I was always filled with immediate dread at the prospect of wading through one of these 12-page monstrosities, not entirely sure what I was looking for and fearful about letting the defense counsel get the better of me. With a little time and experience, I have come to the conclusion that if we can’t wish these away, we must endeavor to understand them and develop a more streamlined approach for dealing with them. Tame the beast and make it work for you, so to speak. Confidencial transparency So, what are Stipulated Protective Orders specifically? Often referred to as SPOs, these are documents most often proffered by defense counsel whereby they want you to sign off on (or stipulate to) the idea that they have documents worthy of special protections under the eyes of the court. Most of the time, they won’t show you the documents in question or even describe them with any detail, until you agree that, sight unseen, they must indeed be worthy of the special designation of CONFIDENTIAL, such that they can’t be shared outside the case, or filed in court without doing so under seal. The SPO itself is a pleading containing a mutually agreed upon arrangement between the parties vis-à-vis confidential discovery, subject to court approval of the Order, which is routinely granted when sought by stipulation. The inherent conflict for a plaintiff’s lawyer is that the court system is supposed to be open, accessible and accountable to all. Those are the values we cherish, and transparency is a bedrock principle that ensures fairness and accountability. Transparency allows the public to have confidence in the justice system and enables parties involved in a case to understand the process and make informed decisions. Consequently, when asked to sign a SPO, every plaintiff’s attorney should do so carefully and with eyes wide open. The SPO might be considered a bridge between the oft antithetical ideals of transparency and its counterpart, privacy of sensitive information. In navigating the pull between these competing policies in our practice, the key is ensuring that defense attorneys and big corporations do not go unchecked in telling us what is worthy of protection by way of imprimatur of confidentiality. While defense counsel wants you to believe you must sign on the SPO dotted line out of necessity in order to prosecute your case, we don’t have to roll over. We can be forceful about our clients’ rights in any given case, as well as other similarly injured individuals, the public at large and the sanctity of our great legal system. Taking a step back, not all personal injury cases will involve the protective orders discussed in this article, which are most often seen in products liability cases, medical malpractice cases, civil xStipulated Protective Orders MAKING THEM WORK FOR YOU
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