United States District Court, E.D. Wisconsin
Stadtmueller, U.S. District Judge
February 14, 2017, in connection with the submission of their
Rule 26(f) report, the parties jointly requested entry of a
protective order. (Docket #17 at 5). The parties request that
the Court enter a protective order so that the parties may
avoid the public disclosure of confidential information and
documents. Id. 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 parties' request and will
grant it, but, before doing so, 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. Am. Tel. & Tel. 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. 2006).
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); see,
e.g., 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) (citing Citizens First Nat'l
Bank of Princeton, 178 F.3d 943, 945 (7th Cir. 1999)).
parties have requested the protective order in this case in
good faith. This case involves payment of benefits under
ERISA-governed employee benefit plans. (Docket #17 at 1-2).
This will entail disclosure of sensitive employee and
business information. Id. at 3. The Court thus finds
that there is good cause to issue the requested protective
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. See
supra Paragraph (C)(2). 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 case. See
supra Paragraph (D).
the Court must note that, while it finds the parties'
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.
IT IS ORDERED that based on the joint
request of the parties (Docket #17 at 5) 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
IS THEREFORE ORDERED that, pursuant to Fed.R.Civ.P.
26(c) and Civil L. R. 26(e):
DESIGNATION OF CONFIDENTIAL ...