1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ORDER GRANTING IN PART AND DENYING IN 

PART MOTION FOR A PROTECTIVE ORDER - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

PETER TILTON, 

Plaintiff,

v.

THE MCGRAW-HILL COMPANIES, INC.,

et al.,

Defendants.

Case No. C06-0098RSL

ORDER GRANTING IN PART 

AND DENYING IN PART MOTION

FOR A PROTECTIVE ORDER

I. INTRODUCTION

This matter comes before the Court on a motion filed by defendant the McGraw-Hill

Companies, Inc. and Michelle Conlin (“defendants”) for a protective order. (Dkt. #8). The

parties have agreed to the terms of a protective order except for two issues: (1) plaintiff’s

counsel does not agree to return or destroy defendants’ confidential documents after the

conclusion of the litigation, claiming he must retain copies for “insurance purposes;” and (2)

defendants want to include a provision that any non-party that receives a document subpoena

can request to produce the documents subject to “attorneys’ eyes only” protection.

For the reasons set forth below, the Court grants the motion in part and denies it in part. 

II. DISCUSSION

A. Return of Confidential Documents.

Case 2:06-cv-00098-RSL Document 13 Filed 05/12/06 Page 1 of 4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

 Pursuant to defendants’ proposal, the parties would return all confidential documents at

the end of the litigation. Either defendants or defendants’ counsel would keep a set of

defendants’ confidential materials and provide plaintiff’s counsel with reasonable access if he

needs them for insurance purposes. 

ORDER GRANTING IN PART AND DENYING IN 

PART MOTION FOR A PROTECTIVE ORDER - 2

The parties have agreed that they can designate certain documents as confidential based

on their sensitive nature. That sensitivity also militates in favor of destroying or returning all

copies at the conclusion of the litigation. Plaintiff’s counsel nevertheless argues that he should

be permitted to retain a copy of all documents, including the confidential ones, in case he needs

to defend himself against a malpractice claim. At this point, that concern seems speculative and

unlikely. Furthermore, plaintiff’s counsel is not obligated by the ethical rules or his insurance

agreement to retain copies of the confidential documents. Plaintiff’s counsel also argues that the

draft protective order that the parties negotiated explicitly permitted him to retain the documents. 

Defendants only objected to that provision after plaintiff’s counsel signed the draft and believed

the matter was resolved. Although defendants’ decision to change their minds is unfortunate and

has apparently undermined some of the goodwill between counsel, it does not justify allowing

plaintiff’s counsel to retain defendants’ confidential documents.

Finally, defendants have suggested a reasonable alternative that should satisfy plaintiff’s

counsel’s concern about his future ability to obtain the documents.1

 Although plaintiff’s counsel

rejected the proposal by arguing that defendants or their counsel might cease to exist as an entity

or fail to maintain the documents as promised, those risks are equally possible if plaintiff’s

counsel retains the documents. In sum, the Court finds that each party is best suited to retain its

own confidential documents at the end of the litigation. 

B. Attorneys’ Eyes Only Designation.

Defendants seek to include the following provision in the protective order:

Parties may agree, either separately or unanimously, to provide greater confidentiality

protections to documents and information produced by third parties in response to

subpoenas. Any non-party in receipt of a subpoena may also request that it be allowed to

produce highly sensitive information to the party issuing the subpoena subject to

“attorneys’ eyes only” protection restricting distribution to outside and in-house counsel. 

Case 2:06-cv-00098-RSL Document 13 Filed 05/12/06 Page 2 of 4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ORDER GRANTING IN PART AND DENYING IN 

PART MOTION FOR A PROTECTIVE ORDER - 3

The party issuing the subpoena may agree to such protections regardless of whether all

parties agree. The party issuing the subpoena shall not share or distribute copies of any

subpoenaed “attorneys’ eyes only” information to counsel for any other party until such

counsel has agreed to afford “attorneys’ eyes protection” to such information as described

in this Paragraph.

Defendants’ Proposed Protective Order (Dkt. #8-2). This provision would allow third parties to

place broad limits on their produced documents without complying with Fed. R. Civ. P. 45. 

Furthermore, the “attorneys’ eyes only” limitation on those documents would continue

throughout the litigation, even though only one party agreed to the designation. Defendants

have not shown good cause for such a broad provision at this time, so the Court will not impose

it. Instead, defendants argue that this provision is necessary because Microsoft, plaintiff’s

former employer, has informed defense counsel that it may require “attorneys’ eyes only”

protection for plaintiff’s separation agreement with Microsoft. Defendants and Microsoft have

not explained why designating the document as confidential would be insufficient. Furthermore,

plaintiff does not dispute defendants’ assertion that he has a copy of his separation agreement

but has not produced it to defendants. Accordingly, once a protective order is in place, plaintiff

must produce a copy of the agreement, designated as confidential, to defendants.

C. Sealing of Documents.

Paragraph 10 of the parties’ proposed protective order states that the parties will file

confidential documents under seal and those documents “shall be maintained under seal by the

Court.” As stated in Local Civil Rule 5(g), “[t]here is a strong presumption of public access to

the court’s files and records which may be overcome only on a compelling showing that the

public’s right of access is outweighed by the interests of the public and the parties in protecting

files, records, or documents from public view.” On the few occasions when protective orders

are appropriate, they should be narrowly drawn with a presumption in favor of open and public

litigation. Although the proposed protective order describes categories of confidential

documents, some of the categories are vague and the terms of the order give too much discretion

to the parties to file documents under seal without the Court’s approval. Therefore, in order to

Case 2:06-cv-00098-RSL Document 13 Filed 05/12/06 Page 3 of 4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ORDER GRANTING IN PART AND DENYING IN 

PART MOTION FOR A PROTECTIVE ORDER - 4

file a document under seal, the filing party must file a stipulation and proposed order to seal or a

motion to seal pursuant to the Local Rules. The stipulation or motion must specifically explain

why the document should be sealed pursuant to the Local Rules. The stipulation or motion can

either be filed before or at the same time as the document filed under seal. 

Finally, the parties’ proposed order provides that the order may be modified by agreement

of the parties; any modification of a protective order entered by the Court must be approved and

signed by the Court.

III. CONCLUSION

For the foregoing reasons, defendants’ motion for a protective order (Dkt. #8) is

GRANTED IN PART AND DENIED IN PART. Because neither of the parties’ proposed

orders embodies the parameters set forth in this order, they may present a new proposed

protective order, signed by both parties, for the Court’s signature.

 

DATED this 12th day of May, 2006.

A

Robert S. Lasnik

United States District Judge

Case 2:06-cv-00098-RSL Document 13 Filed 05/12/06 Page 4 of 4