United States District Court, E.D. Wisconsin
DESIGN BASICS, LLC, and PLAN PROS, INC. Plaintiffs,
TIM O'BRIEN HOMES, INC., TIM O'BRIEN HOMES OF MADISON LLC, TIMOTHY M. O'BRIEN, and DAN GORSKI, Defendants.
Stadtmueller U.S. District Judge.
November 18, 2016, Plaintiffs filed an expedited motion for
entry of a protective order. (Docket #33). Plaintiffs request
that the Court enter a protective order so that the parties
may avoid the public disclosure of confidential, proprietary
information held by third parties to whom Plaintiffs have
issued subpoenas. Id. Defendants did not respond to
the motion, so the Court finds that Plaintiffs' request
for a protective order is unopposed. See L. Civ. R.
7(h)(2) (providing seven days to respond to an expedited
non-dispositive motion under Rule 7(h)). Rule 26(c) allows
for an order “requiring that a trade secret or other
confidential research, development, or commercial information
not be revealed or be revealed only in a specified
way.” Fed.R.Civ.P. 26(c)(1)(G); Civil L. R. 26(e).
Court sympathizes with the request and will grant it, but
before doing so, it must note the limits that apply to
protective orders. Protective orders are, in fact, an
exception to the general rule that pretrial discovery must
occur in the public eye. American Telephone &
Telegraph Co. v. Grady, 594 F.2d 594, 596 (7th Cir.
1979); Fed.R.Civ.P. 26(c); see also Citizens First
Nat'l Bank of Princeton v. Cincinnati Ins.
Co., 178 F.3d 943, 945-46 (7th Cir. 1999). Litigation
must be “conducted in public to the maximum extent
consistent with respecting trade secrets…and other
facts that should be held in confidence.” Hicklin
Eng'r, L.C. v. Bartell, 439 F.3d 346, 348 (7th Cir.
the Court can enter a protective order if the parties have
shown good cause, and also that the order is narrowly
tailored to serving that cause. Fed.R.Civ.P. 26(c);
Citizens First Nat'l Bank of Princeton, 178 F.3d
at 945; Jepson, Inc. v. Makita Elec. Works, Ltd., 30
F.3d 854, 858 (7th Cir. 1994) (holding that, even when
parties agree to the entry of a protective order, they still
must show the existence of good cause). The Court can even
find that broad, blanket orders-such as the one in this
case-are narrowly tailored and permissible, when it finds
that two factors are satisfied:
(1) that the parties will act in good faith in designating
the portions of the record that should be subject to the
protective order; and
(2) that the order explicitly allows the parties to the case
and other interested members of the public to challenge the
sealing of documents.
Cty. Materials Corp. v. Allan Block Corp., 502 F.3d
730, 740 (7th Cir. 2006).
have requested the protective order in this case in good
faith. This case involves a copyright action which will
involve discovery of confidential proprietary information
belonging to third parties not involved in this litigation.
(Docket #33 at 1). The Court thus finds that there is good
cause to issue the requested protective order.
the Court finds that two slight changes are necessary to
maintain compliance with the above-cited precedent. First,
the proposed order requires sealing, in whole or in part, of
all confidential documents. This departs from the Court's
desire to ensure that every phase of the trial occurs in the
public eye to the maximum extent possible. See Hicklin
Eng'r, L.C., 439 F.3d at 348. While the Court
understands that some documents will need to be sealed
entirely, other documents may contain only small amounts of
confidential information, and so redaction of those documents
may be more appropriate. The Court has modified the
parties' proposed language to that effect. Second,
consistent with the Court's and this district's
standard practice, the Court will allow members of the public
to challenge the confidentiality of documents filed in this
the Court must note that, while it finds the proposed order
to be permissible and will, therefore, enter it, the Court
subscribes to the view that the Court's decision-making
process must be transparent and as publicly accessible as
possible. Thus, the Court preemptively warns the parties that
it will not enter any decision under seal.
the proposed protective order adequately complies with the
standards set forth above (after the Court's minor
changes), the Court will enter an order based on the
plaintiff's motion and proposed order to the Court.
Based on Plaintiffs' motion for protective order (Docket
#33) and the factual representations set forth therein, the
Court finds that exchange of sensitive information between or
among the parties and/or third parties other than in
accordance with this Order may cause unnecessary damage and
injury to the parties or to others. The Court further finds
that the terms of this Order are fair and just and that good
cause has been shown for entry of a protective order
governing the confidentiality of documents produced in
discovery, answers to interrogatories, answers to requests
for admission, and deposition testimony.
IS THEREFORE ORDERED that, pursuant to Fed.R.Civ.P.
26(c) and Civil L. R. 26(e):
DESIGNATION OF CONFIDENTIAL OR ATTORNEYS' EYES ONLY
INFORMATION. Designation of information under this
Order must be made by placing or affixing on the document or
material, in a manner that will not interfere with its
legibility, the ...