Protective Orders

Protective Orders

Rule 26(c)(1) lets a party, or any person from whom discovery is sought, ask the court for protection from a discovery demand.¹ The motion goes to the court where the action is pending or, on matters relating to a deposition, to the court for the district where the deposition will be taken, and it must certify that the movant has in good faith conferred or attempted to confer with the other affected parties to resolve the dispute without court action. If the dispute survives conferral, the court may, for good cause, issue an order protecting a party or person from annoyance, embarrassment, oppression, or undue burden or expense.² The rule thus answers three questions in sequence: who may ask, what the movant must show, and what the court may do.

Work product and a protective order guard against different dangers. Work-product protection turns on how the material came into being. The doctrine encourages attorneys to write down their thoughts and opinions, knowing that their opponents will not rob them of the fruits of their labor,³ and a document created because of anticipated litigation, one that would not have been prepared in substantially similar form but for the prospect of that litigation, falls within Rule 26(b)(3).⁴ The doctrine can reach an investigation made while no suit is pending, so long as the prospect of litigation is strong enough.⁵ A protective order asks a different question: what harm would the demand itself do to the person who must answer it?

The two meet in practice, because a motion for a protective order can carry any objection to a demand. In American Standard Inc. v. Pfizer Inc., Biomet moved for a protective order against subpoenas and argued that the requested discovery was irrelevant, would impose an undue burden even if relevant, contained trade secrets and confidential business information, and was privileged.⁶ In a separate dispute, a court held that Wells Fargo was entitled to a protective order because the relators had not yet met their heavy burden of showing substantial need and undue hardship, although they remained free to seek discovery of the underlying facts.⁷

The rule also gives the court responses short of granting or denying discovery outright. It may forbid inquiry into certain matters, limit the scope of discovery to certain matters,⁸ or require that a trade secret or other confidential commercial information be revealed only in a specified way.⁹ The subsections that follow take the steps in the order a movant meets them: moving for the order, showing good cause, and then the forms of relief and the consequences of denial.

Moving for an Order

Any person from whom discovery is sought may move, and that phrase reaches past the parties to the lawsuit.¹⁰ A nonparty served with a subpoena has no pleading through which to shape the case, so the motion is how it asks a court to narrow the demand. In American Standard, the demand was a set of subpoenas served on Biomet, a nonparty, and Biomet moved for a protective order under Rules 26(b)(1) and 26(c).¹¹ The reviewing court observed that the district judge had incorporated Biomet's nonparty status into his analysis but had not based his decision solely on that fact.¹²

The motion belongs in the court where the action is pending. On matters relating to a deposition, the rule offers an alternative: the court for the district where the deposition will be taken.¹³ The alternative lets a deponent bring a dispute about the deposition to the court sitting where the testimony will be given. Because the text confines the alternative to deposition matters, every other protective-order motion goes to the court where the action is pending.

The certification reflects the order in which discovery disputes are meant to be handled. A person who seeks a protective order must first meet and confer with the requesting party, making a good-faith effort to resolve the dispute without court action; only then must the person show good cause.¹⁴ The text counts an attempt to confer, so a movant whose opponent will not talk can still certify its effort.¹⁵ American Standard shows the sequence. The subpoenas were served on November 5, 1985. For the next several weeks, counsel for American Standard and for Biomet tried to negotiate an agreement limiting the scope of discovery, and only when that failed did Biomet move for a protective order on December 23, 1985.¹⁶

The motion can also be anticipated. The parties' discovery plan under Rule 26(f)(3)(F) can address any other orders the court should issue under Rule 26(c) or under Rule 16(b) and (c), so a confidentiality order or a limit on a category of discovery that the parties can foresee need not wait until a demand has been served.¹⁷ A fact pattern that asks whether a motion was properly brought therefore calls for three checks: whether the movant is a party or a person from whom discovery is sought, whether the motion went to a court the rule allows, and whether it includes the certification.

The Good-Cause Standard

Good cause stands between a properly filed motion and relief. The court may issue a protective order only for good cause, to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.²⁰ The certification brings the motion before the judge; the showing of good cause decides it.

The Third Circuit held in Pansy v. Borough of Stroudsburg that good cause exists when a party shows that disclosure will result in a clearly defined, specific, and serious injury, and that broad allegations of harm do not suffice.²¹ The test demands facts. A movant who calls a demand harmful, burdensome, or oppressive and says no more has not described an injury.

A bare claim of burden fails for the same reason. In a dispute over Wainwright's discovery requests to WMATA, the court found WMATA's assertion of undue burden unsupported: WMATA had not indicated the number of incidents involved, the number of documents, or the number of work hours, and summary data, the court added, are no substitute for detailed documentation.²² The court also held that communications between WMATA and Schindler about safety, design, and maintenance were relevant and that factual disputes over an employee's ability to locate a switch could not be the basis for foreclosing discovery, and it ordered WMATA to produce information on step-combplate incidents on all of its escalators from 1985 forward.²³

A claim of protection receives the same scrutiny. Schindler contended that its description of factual circumstances was work product prepared in anticipation of litigation, and the court held that Schindler had not met its burden under Rule 26(b)(5) to enable other parties to assess the applicability of the protection.²⁴

Courts judge good cause on a record. The footnotes in Seattle Times Co. v. Rhinehart show the Supreme Court attending to what the record did and did not establish: it noted that the record was unclear whether all five female plaintiffs participated in the chorus line described in the 1978 articles and did not disclose whether any was mentioned by name, and that, although the complaint did not allege that the articles reduced the Foundation's membership, the respondents' answers to interrogatories raised that issue.²⁵ A movant's account of harm will be tested against a record of the same kind.

Even a well-supported showing rarely ends discovery altogether. Courts have enormous discretion to shape protective orders to the dispute, and the remedies include ordering that information be kept confidential, narrowing the request, permitting production in a particular format, denying discovery altogether, and shifting or sharing the cost of production with the requesting party.²⁶ Rule 26(c)(1)(B) authorizes an order specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery, and the 2015 amendments made that authority explicit in the rule.²⁷

An exam stem in which a party resists discovery by saying only that the request is burdensome, embarrassing, or harmful describes a motion that fails for want of good cause. A stem that supplies facts, such as the number of incidents, the number of documents, or the hours compliance would take, describes a showing a court can credit, and the usual result is relief on specified terms that stops short of cutting off all discovery.

Limiting Scope of Discovery

Rule 26(c)(1)(D) allows a court to forbid inquiry into certain matters or to limit the scope of disclosure or discovery to certain matters.³² The clause appears among the orders available once the movant shows good cause, so it supplies a form of relief and no exemption from the showing.³³ The two orders differ in degree: forbidding inquiry closes a subject, while limiting scope leaves the subject open but confines discovery to the part the requester may fairly reach.

Which order fits depends first on whether the request reaches matter within the scope of discovery under Rule 26(b)(1). Protective orders are appropriate when a request seeks information beyond that scope, and the remedies a court may give include narrowing the request, permitting production in a particular format, and denying discovery of the information altogether.³⁴ The range matters because real requests are often part legitimate and part excessive. A court that could only grant or deny the motion in full would have to compel the excessive part to protect the requester or cut off the legitimate part to protect the responder.

Some matter lies outside discovery even though it is neither privileged nor irrelevant. In Hickman v. Taylor, the Supreme Court considered an attempt, without purported necessity or justification, to secure written statements, private memoranda, and personal recollections prepared or formed by an adverse party's counsel in the course of the lawyer's duties. Neither Rule 26 nor any other discovery rule contemplates production in those circumstances, the Court said, and not because the subject matter is privileged or irrelevant: the attempt falls outside the arena of discovery and contravenes the public policy underlying the orderly prosecution and defense of legal claims.³⁵ Were such materials open to opposing counsel on mere demand, the Court reasoned, much of what is now put down in writing would remain unwritten.³⁶ Justice Jackson made the point in his concurrence: discovery was hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the adversary.³⁷ Depositions of an opposing party's lawyers raise the same issue; see Republic of Haiti v. Crown Charters, Inc.

The protection is qualified. A requester may obtain trial-preparation materials by showing that it has substantial need for them to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.³⁸ Even then, a court that orders discovery of those materials must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of the party's attorney or other representative concerning the litigation.³⁹ Only factual, or non-opinion, work product is discoverable under the rule, and because the line between factual and opinion work product is not always distinct, a court should balance the policy against sword-and-shield litigation tactics with the policy of protecting work product.⁴⁰

A scope order can also separate facts from the papers and thoughts that record them. Rule 26(b)(3) itself protects only documents and tangible things and does not bar discovery of facts a party may have learned from documents that are not themselves discoverable; Hickman v. Taylor nonetheless continues to protect work product not embodied in tangible form, and because intangible work product includes the thoughts and recollections of counsel, it is often eligible for the special protection accorded opinion work product.⁴¹ The Wells Fargo dispute followed that line: Wells Fargo kept its protective order, yet the relators were not prevented from obtaining discovery of the underlying facts.⁴²

A requester cannot avoid these limits by pointing out that the protected document also served a business purpose. A document created because of anticipated litigation that tends to reveal mental impressions, conclusions, opinions, or theories concerning the litigation does not lose work-product protection merely because it is intended to assist in a business decision influenced by the likely outcome.⁴³

Relevance and need decide how much of a request survives. In American Standard, Biomet asked the court to limit discovery to nonconfidential information about its sales of implant devices and nonprivileged information about its assessment of the validity of the patent.⁴⁴ The district court found Biomet's clinical data on the capacity of porous-coated implants to enhance bone ingrowth relevant to the utility issue and, because no other implant manufacturer could supply it, found that American Standard needed it to prepare for trial.⁴⁵ It found no showing of need for the confidential sales data, because similar information was available from the actual defendants in the pending litigation.⁴⁶ One ruling thus treated two categories of the same nonparty's information differently, according to what the requester could obtain elsewhere. The same question appeared in the Wainwright dispute, where Wainwright answered Schindler's work-product claim by arguing that the accident investigation was a routine business report and that he could not obtain similar information from alternative sources.⁴⁷

When the ruling turns on what a document is, the court can examine it. An in camera review in one case showed that an e-mail was work product: it was sent more than four months after the lawsuit was filed, and it provided information gathered about the party's dealings with another company in order to respond to requests by attorneys already representing the party.⁴⁸

An exam stem in which a movant objects to a sweeping request tests whether you treat the order as a set of choices instead of a single yes or no. Irrelevant matter may be forbidden, relevant matter survives, an oversized but relevant request is reshaped, and counsel's mental impressions stay protected even when need is shown.

Confidential Commercial Information

Rule 26(c)(1)(G) permits 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.⁵⁸ The second alternative shows that confidentiality need not end the inquiry: the clause assumes that such information may still be revealed under conditions the court sets. The remedies a court may give include simply ordering that the information be kept confidential.⁵⁹

The court can also control who is present. Rule 26(c)(1)(E) allows an order designating the persons who may be present while the discovery is conducted, so a deposition can go forward while the order limits who hears the answers.⁶⁰

American Standard shows how confidentiality interacts with need. Biomet argued that the discovery sought contained trade secrets and confidential business information.⁶¹ The court's findings turned on relevance and need. It found that American Standard needed Biomet's clinical data, which were relevant to the utility issue and available from no other implant manufacturer,⁶² but that American Standard had not shown need for Biomet's confidential sales data, because similar information was available from the actual defendants.⁶³

Availability explains the difference. Information that only the nonparty holds can supply need; information that a party can provide from its own files leaves the requester without need for the nonparty's copy. Biomet's status as a nonparty was part of the analysis but not the whole of it.⁶⁴

Parties often agree on confidentiality terms and submit them as stipulated orders, as in Crannage v. Gold's Gym. One reported confidentiality order provided that the protected documents and the information in them could be used at any hearing, subject to any further protective order the court might, for good cause, enter, and that use or filing would not waive attorney-client privilege, work-product protection, confidentiality, or any other applicable privilege.⁶⁵ A clause of that kind tells the parties in advance that the controlled use the order authorizes does not give up protection.

A stem that gives a nonparty a strong showing of confidentiality and a requester with no other source describes production on conditions. A stem in which a party can supply the same information describes a failed showing of need for the nonparty's copy. Confidentiality supplies the conditions for production and does not by itself supply a refusal.

Denial and Expenses

Rule 26(c)(2) answers what follows a movant's loss: if a motion for a protective order is wholly or partly denied, the court may, on just terms, order that any party or person provide or permit discovery.⁷³ Three phrases carry the rule. Wholly or partly covers the common middle result, in which the court finds good cause for some of what the movant asked and denies the rest. On just terms lets the court attach conditions to the discovery that goes forward, so a denial does not mean production in whatever form the requester demanded. And any party or person matches the class that may move under Rule 26(c)(1), so the power reaches the nonparties whose motions the court has just decided.⁷⁴

The power exists because the motion is made while the demand is still outstanding. A ruling that said only “denied” would leave the discovery where it stood, with no one having fixed when, where, or how it would happen. Rule 26(c)(2) lets the court turn the denial into a working order.

Rulings in practice divide along the lines the movant's showing draws. In the dispute over Wainwright's requests, the court rejected WMATA's burden objection and ordered WMATA to produce information on step-combplate incidents on all of its escalators from 1985 forward, together with a list of the documents it withheld on privilege grounds and the basis for the assertion of privilege.⁷⁵ In American Standard, the court found need for Biomet's clinical data and no need for its confidential sales data.⁷⁶

A counterpart provision quoted in Campen v. Stone has the same structure: “If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.”⁷⁷

The terms of an order may also allocate the expense of the discovery itself. Rule 26(c)(1)(B) lists an order specifying terms, including time and place or the allocation of expenses, and courts can shift or share the costs of production with the requesting party; for a nonparty subpoenaed in someone else's lawsuit, see United States v. Columbia Broadcasting System, Inc.⁷⁸

The expenses of the motion are a separate question, and Rule 26(c)(3) sends it elsewhere: Rule 37(a)(5) applies to the award of expenses.⁷⁹ An answer should cite that rule and not improvise a rule about who pays. Students tend to run the two kinds of expense together, but a term that allocates the cost of compliance and an award of the expenses of the motion come from different parts of Rule 26(c).

An exam stem that reports a denied or partly denied motion and asks what follows tests two points. The first is that the court has power to order discovery on just terms and does not simply release it without conditions. The second is that expense questions split into the cost of compliance, which the order may allocate, and the expenses of the motion, which Rule 37(a)(5) governs.