Many times in litigation, parties to a case will have to exchange information that is sensitive, private, confidential, or even a trade secret. Although the party may not want to hand over this information for any one of these reasons, the party is often required to because the information or documents are relevant to the claim in the case.
While this is often worrisome for clients, many also face the additional complication that documents used in a civil case become records available to the public and can often be found by any individual who takes the time to search a court docket. This means that citizens can potentially access an individual’s private medical records or the confidential financial records of a company.
In order to protect this type of information and keep the public from accessing information that is very sensitive, many parties agree to the use of protective orders. A carefully drafted protective order can go a long way toward keeping your private information out of the public eye.
What Is a Protective Order?
When individuals hear the term “protective order” they often think of the restraining orders that may be issued by a court in a domestic violence case. While those types of orders serve an important purpose, they are not the same as protective orders entered to ensure confidentiality.
Protective orders in civil cases are orders entered by a judge. Sometimes, the orders can be drafted by the parties who agree to govern the disclosure of information in a case. During the course of discovery, parties may have to exchange many different types of documents including things such as:
- Medical Records
- Therapy Records
- Tax Returns
- Accounting Books and Records
- Trade Secrets or Proprietary Information
A protective order allows parties to identify this type of information ahead of time and designate it as confidential in their case. The protective order then sets forth the terms for how that confidential information should be treated and how it can be used. It tells parties what they can and cannot do with such documents or records. In most cases, a protective order also clearly designates that confidential information cannot be shared with the public or publicly filed.
Elements of a Protective Order
Each protective order must be drafted based on the unique needs and circumstances of the case, but there are several key components that most protective orders must address.
First, the protective order must set out what types of documentation are going to be considered confidential in the case. While one party may want to keep a wide variety of documents confidential, another may want to be able to share those documents with third parties for investigative purposes or other reasons. Thus, there may be a negotiation that occurs in defining what is to be confidential and protected.
Second, the protective order will set forth how those confidential documents must be handled. Some examples are how they should be exchanged between the parties, whether they need to be marked confidential or be redacted (those black lines you see in movies with top secret government documents), and what should be done with them in the event that they are needed for a deposition or a court filing.
Third, the protective order can set forth who is entitled to look at the documents. In the most extreme of circumstances, such as in a trade secrets case, the parties may decide that documents are for “attorneys eyes only” meaning that while the attorneys can look at the documents, the party receiving them cannot.
Often, the parties will agree to limit access to the documents to the attorneys, parties, witnesses, and experts related to the case. The protective order may also require third parties who are reviewing the documents, such as an expert, to sign an agreement acknowledging that they are bound by the terms of the protective order.
Finally, the protective order will usually set forth procedures for (1) dealing with violations of the protective order and (2) what to do with documents after the case is over. Given the sensitive nature of most documents under a protective order, parties typically do not want them sitting around and will include instructions on how documents should be returned or destroyed.
Can I Always Get a Protective Order?
Protective orders are something that any party can try to seek in a civil case, but there is no guarantee that they will be granted. Courts serve the public and have a legal obligation to allow information to remain public. For this reason, judges can be suspicious of protective orders that may try to keep overly broad categories of information from the public or limit another party’s access to documents.
Often, when considering a protective order, one of the best things to do is to be fairly narrow and specific in the scope of the documents to be protected and to have a good basis for the need for protection. While courts provide information to the public, they are not interested in embarrassing parties or jeopardizing their financial success by disseminating information that clearly should be protected. Thus, in many instances, a reasonably drafted protective order will be acceptable in a case.
Iowa Attorneys Protecting Your Interests during Civil Litigation
Despite the best efforts of many attorneys to be courteous and reasonable, sometimes the process of discovery in a lawsuit becomes an all out effort to obtain sensitive and embarrassing information on a party in the hopes of portraying them in a bad light.
When this happens, you need an attorney who is willing to aggressively fight back against unreasonable and irrelevant requests for documents and information and who can help you obtain a protective order that will keep your private and confidential information from disclosure. No client wants to see their dirty laundry printed in the local news, or learn that the proprietary techniques they have worked so hard to develop are now available to anyone with an internet connection.
Business litigator Jonathan D. Schmidt has successfully navigated the minefield of discovery for clients for over a decade including helping individuals and companies with invasive document requests and protective orders. For more information, contact us online or at (319) 423-3031.