39 Trial Lawyer • Winter 2024 which requires a signature from anyone who will review the confidential information, frequently called “Exhibit A.” We should do our best to discourage the overuse of “Exhibit A” and/or “Acknowledgment and Agreement to be Bound” type documents when it is not arguably to our client’s benefit, as these “extra hoop to jump though” requirements often create more red tape designed to discourage a plaintiff from prosecuting their case freely. They can also have a chilling effect on the people that plaintiffs rely upon to help make their cases. The agreed upon terms of the SPO are enforceable whether or not there are signed exhibit/acknowledgments in the file. Let’s not make litigation any harder or more intimidating than it is already! Another thing to be certain of is that any SPO you sign off on allows you to keep a complete archival copy of your file materials, including those having been marked confidential. And finally, you’ll want to be sure that any Stipulated Protective Order in Multnomah County contain specific language indicating that the protective order itself does not allow or require parties to file documents under seal without further order from the court and instead includes language required by Multnomah County SLR 5.165. A failure to include the required language will get the SPO kicked back without judicial approval. By way of more practical advice, don’t let timelines on designations impact the plaintiff’s obligations to the court as a litigant, e.g., where a Stipulated Protective Order gives a party 30 days to designate confidential portions of a transcript following a deposition. Try to shorten those windows as appropriate and include language that, to the extent the designation window impacts any party’s ability to respond to pending motions, leave of the court for briefing extensions will be cooperatively sought. The challenge process should be well defined to avoid situations where the parties are not beholden to agreed-upon procedures and can simply stall (thereby delaying the entire case) out of obstinance. A good challenge procedure should read something like any party, or non-party, may challenge a designation at any time. The parties should then confer about the dispute within a designated time frame, i.e., 14 days, and if the dispute cannot in good faith be resolved, ideally the proponent of confidentiality should have to affirmatively move for protection from the court within a set time frame, i.e., 20 days. (The defense counsel won’t like this, but they should be reminded it is their burden to establish entitlement to protection from the outset and having some safeguards in place for the plaintiff is a small price to pay for your willingness to trust in the good faith of their designations and enter into a Stipulated Protective Order in the first place, a graciousness on your part that saves them and the court significant hassle.) Sharing We turn now to the important issue of sharing provisions in SPOs. Because we live in a world where we know that not all parties come to litigation with the same moral compass and are not always forthcoming with document production, it is vital that we plaintiff’s attorneys push for “sharing provisions” in protective orders that we stipulate to. That is where we say, “Yes, we can keep some of this information confidential from your competitors and even the general public, but we will not hide it from persons involved in litigation, such as potential claimants and their attorneys, who are similarly situated to our own clients.” It is critical that there be openness among plaintiff-side litigants fighting the same battles so that these large corporate defendants, which, make no mistake, concert their efforts to fight tort litigation, cannot take advantage of the fact that plaintiffs, hamstrung by onerous See Protective Order p 40
RkJQdWJsaXNoZXIy MTY1NDIzOQ==