38 Trial Lawyer • Winter 2024 Protective Orders Continued from p 37 forget that it is the defendant’s burden to show good cause for the outcome they desire. A good and usable Stipulated Protective Order will not confuse or attempt to flip this burden and will ensure there is a clearly designated procedure for challenging a designation by bringing the dispute to the court when the parties disagree that any given discovery really warrants the protection of confidentiality and the associated privilege of being secreted from the public. In fact, an SPO should specifically articulate that any designating party must have a good faith belief that the information would warrant confidential protection. Just because someone doesn’t want certain information to become public knowledge doesn’t mean that it should not be public knowledge or that they can show good cause why it deserves such extreme protection. The more that we insist as litigants that this good cause standard be abided by, the more light is shone into the darkness. Two-way street In addition to ensuring that the correct burden is articulated loud and clear, there are other practical things to look for in any defense proposed Stipulated Protective Orders. A tolerable SPO must be a two-way street, meaning that any party, not just the initial proponent of the SPO, can mark as “CONFIDENTIAL” discovery for which it believes demonstrable good cause exists for protection. The SPO should clarify that confidential information does not include information that is otherwise publicly available, known to the receiving party prior to disclosure or received lawfully by some third party without restriction to disclosure. Your SPO must include an explicit affirmation that the parties will make a good faith effort to designate information in a way that provides the greatest level of disclosure possible while still preserving confidential information (i.e. designating discrete sections of documents as confidential where possible rather than the entirety thereof ). SPOs invariably contain a section that discusses who the confidential materials can be disclosed to. It is our responsibility in reviewing the SPO to ensure that this language contemplates everyone in our office, our experts and investigators, court and court personnel, court reporters, litigation support services, witnesses, other similarly situated litigants, insurance companies and adjusters, mediators, and potentially lienholders and their subrogation agents to the extent reasonably necessary in the normal course of litigation. If your case will involve a different set of critical eyes, be sure to carve out an exception for any other persons that you might reasonably need to share discovery with during the course of litigation. Most protective orders come with an Agreement to be Bound by the SPO,
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