United States District Court, E.D. Wisconsin
H-D U.S.A., LLC and HARLEY-DAVIDSON MOTOR COMPANY GROUP, LLC, Plaintiffs,
SUNFROG, LLC d/b/a SUNFROG SHIRTS and JOHN DOES, Defendants.
STADTMUELLER U.S. DISTRICT JUDGE.
February 21, 2018, the parties jointly requested entry of a
stipulated protective order and submitted a proposed draft of
the order. (Docket #69). The parties request that the Court
enter such an order so that they may avoid the public
disclosure of confidential information and documents.
Id. at 1-2. Federal Rule of Civil Procedure 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); see
also Civ. 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); 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 that the order is narrowly tailored to
serve that cause. Fed.R.Civ.P. 26(c); Citizens
First, 178 F.3d at 945; Jepson, Inc. v. Makita Elec.
Works, Ltd., 30 F.3d 854, 858 (7th Cir. 1994) (even when
parties agree to the entry of a protective order, they still
must demonstrate the existence of good cause). The Court can
find that even broad, blanket orders 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.
County Materials Corp. v. Allan Block Corp., 502
F.3d 730, 740 (7th Cir. 2006).
parties have requested the protective order in this case in
good faith. The parties report that this trademark case will
entail the disclosure of confidential information, including
trade secrets or other technical, financial, or commercial
information. (Docket #69 at 1-2). As a result, the Court is
satisfied that there exists a sufficient basis for the
requested protective order.
parties' proposed protective order, however, appears
overbroad. It provides that, if the parties need to file
documents containing confidential information with the Court,
they may do so by filing the documents under seal. In other
words, the parties wish to be able to seal- in their
entirety-any documents that contain sensitive information.
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, 439 F.3d at
348. While the Court understands that some documents will
need to be sealed entirely, others may contain only small
amounts of confidential information, and so redaction of that
information may be more appropriate.
Court, thus, has crafted its own protective order to enter in
this case. The Court's protective order still allows the
parties to file documents under seal, but does not presume
that every confidential document should be filed under seal
in its entirety. Rather, it contemplates that the parties
will use their judgment to determine the best way to protect
confidential information in submitted documents. The order
also includes a provision consistent with the Court's and
this district's standard practice of allowing any party
and any interested members of the public to challenge the
sealing of documents.
the Court must note that it subscribes to the view that its
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 parties' 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 parties' proposed order.
Pursuant to the joint request of the parties (Docket #69),
the Court finds that the exchange of sensitive information
between the parties and/or third parties other than in
accordance with this Order may cause unnecessary damage and
injury to the parties and 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 Civil Local
Rule 26(e) and Federal Rule of Civil Procedure 26(c)(1)(D),
(A) 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