37 Trial Lawyer • Winter 2024 See Protective Orders p 38 rights cases and injury cases involving larger corporate defendants where the public disclosure of some information could harm a party’s competitive advantage or reveal trade secrets. It is almost always Goliath pushing David around, all in the quest to protect and expand Goliath’s dominion. Stipulated Protective Orders don’t show up much in garden variety motor vehicle collision lawsuits, but you will see these in nearly every case that you file against an auto manufacturer for instance. Even a plaintiff will at times be the proponent of a Stipulated Protective Order. Factors such as a plaintiff’s age, life circumstances or the nature of their injuries can warrant confidential protections. In such instances, by all means, be proactive and propose a simple Stipulated Protective Order that indicates that the plaintiff’s confidential medical records will be maintained in secure manner, destroyed at an appropriate juncture and not disclosed to third parties without express authorization. It should also contain a plan for conferral prior to the filing of any confidential documents that might include redaction or a motion to file under seal as appropriate. A balancing act Turning back to the situation where the big corporate defendant wants you to agree that they should get the specially bestowed protection of confidentiality in exchange for giving you production (despite the fact that the law already requires that they do that), how does one go about assessing whether one should say yes or not? Well, there is something to be said for the efficiencies provided by a Stipulated Protective Order because it streamlines disputes that would otherwise have to be debated in front of a judge. Accordingly, let the balancing begin! Because Oregon law recognizes the public's right to access court records and proceedings and in order to ensure legal transparency, any restrictions on disclosure of otherwise discoverable documents must be justified and adhere to certain requirements and guidelines. First and foremost, SPOs must be narrowly tailored to protect only the specific information that legitimately requires confidentiality. Any SPO should clearly define what information is considered confidential and provide a sufficient rationale for its protection. This ensures that the order does not unnecessarily restrict access to information that should be available to the public. Second, Stipulated Protective Orders must include provisions for challenging the confidential designation of specific information. This allows parties or interested third parties to contest the SPO if they believe the information should be made public. A court can then evaluate the merits of the challenge and decides whether the information should remain confidential or be disclosed. Additionally, SPOs often include provisions for redaction or sealing of documents, which needs to be done in accordance with local court rules and again with an eye to fostering transparency and the fullest public access which is just and fair. The rules tell us that when a party seeks to keep otherwise discoverable information confidential, it must make a showing of “good cause” as to why those documents should be shielded from the otherwise public process of litigation. See ORCP 36C(1). Moreover, disclosure of the information must demonstrably cause a clearly defined and very serious injury to the designating party, if disclosed, that outweighs the public interest in disclosure. See generally Foltz v. State Farm Mut. Auto. Ins. Co., 331 F3d 1122, 1131-1132 (9th Cir. 2003) The courts have discretion to make any order in limiting the extent of disclosure when good cause is shown and at core must balance public policies in favor of transparency against private interests in maintaining confidentiality with respect to certain documents. Plaintiffs must never
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