Robert Timothy Reagan

Federal Judicial Center

2012

This Federal Judicial Center publication was undertaken in f

Center’s statutory mission to develop and conduct research an

grams for the judicial branch. The views expressed are those 

not necessarily those of the Federal Judicial Center.

iii

Stipulated Orders .................................................

Attorney Eyes Only .............................................

Modification ........................................................

Subpoena .......................................................

Reliance ........................................................

Intervention ...................................................

Efficient Discovery in Other Cases ..............

Sealing .................................................................

Criminal Cases ....................................................

Appeal and Mandamus ........................................

1

has proved confidentiality protective orders to grease 

discovery in many cases. Parties are often more will

requested discovery when they know that such produ

necessarily make the information public.

This pocket guide is not about other types of pro

such as protective orders that protect a party from 

duce requested discovery,1 or what state courts ofte

ing orders—orders preventing parties from engagi

potentially injurious to the safety of others. This p

also not about sealing the court’s own records. That 

Sealing Court Records and Proceedings: A Pocket G

Confidential-discovery protective orders have g

law in civil cases more often than in criminal cases, 

initial focus is civil cases. Many of the principles di

however, to criminal cases, which are discussed sp

the end of this guide.

Civil Discovery

A civil action between two parties establishes a subp

the court that parties use to demand information fro

A party is presumptively entitled to all information 

party’s control material to the action, so long as the r

 

1. See, e.g., Fed. R. Civ. P. 26(c)(1)(B)–(H).

2. See, e.g., Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982).
2

diminished by the current practice of not routinely 

covery for filing.

Parties now retain discovery themselves. Ordina

is shared with persons not party to the suit only wh

parties chooses to share it.3 Producing parties, howe

limits on receiving parties’ distribution of the prod

information. This could be accomplished by private 

is often accomplished by a protective order issued by 

Good Cause

Upon a showing of good cause, the court has discre

protective order that forbids a party from disclosin

sons specific information acquired in discovery.4 T

showing good cause falls at all times on the party s

tion.5

 

3. Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 78

(“Certainly the public has no right to demand access to di

which are solely in the hands of private party litigants.”).

4. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 785–8

(describing the discretion as inherent power).

5. Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 112

2003) (“A party asserting good cause bears the burden, for ea

ument it seeks to protect, of showing that specific prejudice or h

no protective order is granted.”); Pansy v. Borough of Stroudsb

786–87 (3d Cir. 1994) (“The burden of justifying the confident

every document sought to be covered by a protective order rem
3

fication that the movant has in good faith conferred o

confer with other affected parties in an effort to reso

without court action.”7

“‘Good cause’ is established when it is specif

strated that disclosure will cause a clearly defined an

ry. Broad allegations of harm, unsubstantiated by 

ples, however, will not suffice.”8

 

seeking the order.”); Miller v. City of Boston, 549 F. Supp. 

Mass. 2008) (“The proponent of a Protective Order bears the 

lishing ‘good cause’ for its continuation,” footnote omitted.); s

v. Liggett Group, Inc., 785 F.2d 1108, 1122 (3d Cir. 1986) (“It 

burden of justifying the confidentiality of each and every docu

covered by a protective order remains on the party seeking the 

any other conclusion would turn Rule 26(c) on its head.”).

6. See also In re Alexander Grant & Co. Litig., 820 F.2d 3

1987); Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982); MCL 

66–67 (Federal Judicial Center 2004).

7. Fed. R. Civ. P. 26(c)(1); see Forest Prods. Northwes

States, 453 F.3d 1355, 1361 (Fed. Cir. 2006) (holding that the 

correct to deny a motion for a protective order because the mo

ferred with the [other party] to resolve the dispute nor de

cause”).

8. Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3

also Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 112

2003); Anderson v. Cryovac, Inc., 805 F.2d 1, 7 (1st Cir. 19

Liggett Group, Inc., 785 F.2d 1108, 1118–21 (3d Cir. 1986) (

good cause analysis, although by no means toothless, is signif
4

prise, whose primary measure of well-being is presumab

ble, to argue for a protective order on this ground. To suc

ness will have to show with some specificity that the emba

sulting from dissemination of the information would cause 

harm to its competitive and financial position.10

The First Amendment

Parties presumptively have a right, in part protecte

Amendment, to share what they learn in discovery w

sons, including news media, as they see fit.11 A p

must be based on good cause, because it infringes th

right.

A discovery protective order may not forbid a p

closing information it has acquired from sources oth

ery, even if the information is also included in discov

The public has a common-law right and a Fir

right to court records, but the public, including news 

 

gent than the least restrictive means test”); United States v. 

1323, 1325–26 (5th Cir. 1978).

9. United States ex rel. Davis v. Prince, 753 F. Supp. 2d 5

Va. 2010) (“the annoyance or embarrassment must be particula

10. Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (

tations omitted).

11. Jepson, Inc. v. Makita Elec. Works, Ltd., 30 F.3d 8

1994).

12. Int’l Prods. Corp. v. Koons, 325 F.2d 403 (2d Cir. 1963
5

ically, a blanket protective order permits a party to 

of its produced discovery as confidential upon a go

that there is good cause for the designated discovery 

in the protective order.15

 

13. Bond v. Utreras, 585 F.3d 1061, 1066 (7th Cir. 2009

constitutional or common-law right of public access to discov

changed by the parties but not filed with the court. Unfiled dis

not public.”).

14. Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 77

(because of the volume of discovery documents it would be ph

ble for the defendants to designate individually each document 

dential or secret information); In re Alexander Grant & Co. Lit

357 (11th Cir. 1987) (“We conclude that in complex litigation 

by-document review of discovery materials would be unpract

the parties consent to an umbrella order restricting access t

mation in order to encourage maximum participation in the d

conserve judicial resources and prevent the abuses of annoyanc

embarrassment, a district court may find good cause and issue 

pursuant to Rule 26(c).”); Cipollone v. Liggett Group, Inc., 785 

(3d Cir. 1986) (“It is equally consistent with the proper allocat

burdens for the court to construct a broad ‘umbrella’ protect

threshold showing by one party (the movant) of good ca

§ 11.432, at 64–66 (Federal Judicial Center 2004); see also P

Way, Inc., 989 F.2d 527, 532 (1st Cir. 1993); United States 

Prince, 753 F. Supp. 2d 561, 566–67 (E.D. Va. 2010).

15. Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 

(11th Cir. 2001); Cipollone v. Liggett Group, Inc., 785 F.2d 11

1986).
6

tive order for the court to sign. Such an order becom

the court only upon the court’s issuing it. It is not su

parties to file it.

18 It is only proper for the court to 

upon the court’s finding that the order is supported b

In litigation over fiduciary duty, the defendant 

ney–client privilege by relying on an advice-of-co

and the courts determined that the waiver was broad

fendant preferred.19 The parties stipulated to a pr

which they filed with the court, but which the co

dorsed.20 The defendant filed an ultimately unsucce

judgment motion under seal, attaching attorney-clien

tions deemed confidential as exhibits.21 The plaintiff 

seal the motion and the exhibits and declared their i

 

16. Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 79

(“Although . . . blanket protective orders may be useful in expe

pretrial discovery materials, they are by nature overinclusive a

peculiarly subject to later modification.”); Cipollone v. Liggett 

F.2d 1108, 1122 (3d Cir. 1986) (“After the documents [are] de

umbrella order, the opposing party could indicate precisely wh

believed to be not confidential, and the movant would have th

in justifying the protective order with respect to those documen

17. Cipollone, 785 F.2d at 1122.

18. Glenmede Trust Co. v. Thompson, 56 F.3d 476, 480–81 

19. Id. at 480,486–87.

20. Id. at 480.

21. Id. at 481.
7

Sometimes, a party is not only concerned about non

access to discovery, but the party is concerned abou

party’s having access to it as well. Trade secrets are 

ample.26 Courts sometimes issue protective orders th

attorney receiving discovery from sharing certain p

covery with the client.27

A protective order that contemplates a party’s s

ery with opposing counsel but not with the opposin

cilitate discovery in cases involving especially s

mation.

Restricting a party’s access to discovery that i

party’s attorney can serve other goals as well. For e

within a district judge’s discretion to issue a protec

 

22. Id.

23. Id.

24. Id.

25. Id. at 483.

26. R.C. Olmstead, Inc. v. CU Interface, LLC, 606 F.3d 

Cir. 2010).

27. Brown Bag Software v. Symantec Corp., 960 F.2d 14

Cir. 1992) (affirming a protective order denying in-house co

discovery marked for attorney eyes only); Layne Christense

Co., 271 F.R.D. 240, 242–43, 247. (D. Kan. 2010) (finding g

designation of some discovery as for attorney eyes only).
8

The court may be asked to modify a protective 

ignate attorney-eyes-only discovery as merely confid

ty believes the change warranted by circumstances, 

sion to use the discovery as evidence.31

An attorney-eyes-only protective order can be in

to a blanket protective order. The parties may de

discovery they produce as confidential, forbidding 

party from disclosing it to other persons, and certain 

ery as for attorney eyes only, forbidding the opp

from disclosing it even to the attorney’s client. Thes

are provisional and must be supported by a finding 

by the court if challenged later.

 

28. Galella v. Onassis, 487 F.2d 986, 997 (2d Cir. 1973).

29. In re Deutsche Bank Trust Co. Americas, 605 F.3d 137

2010); .U.S. Steel Corp. v. United States, 730 F.2d 1465, 1468 

Pfizer Inc. v. Apotex Inc., 744 F. Supp. 2d 758 (N.D. Ill. 20

Vanguard Health Sys., 241 F.R.D. 597, 600 (W.D. Tex. 2007).

30. Brown Bag Software v. Symantec Corp., 960 F.2d 14

Cir. 1992); Sony Computer Entertainment America, Inc. v. N

Corp., 249 F.R.D. 378, 383 (S.D. Fla. 2008).

31. E.g., Haemonetics Corp. v. Baxter Healthcare Corp., 

298, 302 (D. Mass. 2009) (approving a motion to redesignate 

for outside counsel eyes only as merely confidential).
9

party that is subject to a protective order and the p

subpoena to produce the confidential discovery, t

should seek from the court that issued the protective 

fication to the order permitting compliance with the s

Courts are wary of improper motives. In litiga

drug manufacturer, an expert witness wanted to diss

dential discovery.34 He encouraged an attorney to us

related case to subpoena the discovery, which the 

over without giving the manufacturer an opportuni

by the protective order, to challenge the subpoena.3

disseminated the discovery to news media.36 The co

affirmed the district court’s injunction against furth

tion and order that the improperly obtained dis

turned.37

In some circuits, including the Fourth, the Ninth

enth, a grand jury subpoena automatically trumps a 

 

32. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 784 (3

MCL 4th § 11.432, at 67–69 (Federal Judicial Center 2004).

33. Iowa Beef Processors, Inc. v. Bagley, 601 F.2d 949, 95

(modification sought to comply with a congressional subpoena 

34. Eli Lilly & Co. v. Gottstein, 617 F.3d 186, 189 (2d Cir. 

35. Id. at 189–91.

36. Id. at 189.

37. Id. at 189, 191, 197.
10

poena trumps a civil protective order only if the go

“show improvidence in the original grant of the prot

compelling need or extraordinary circumstances tha

allowing the government access to the [protected dis

Reliance

Before modifying a protective order, the court mu

parties’ reliance on the order.42 “Where there has b

reliance [on a protective order, the court should not 

der] absent a showing of improvidence in the grant 

some extraordinary circumstance or compelling need

 

38. In re Grand Jury Subpoena Served on Meserve, Mump

F.3d 1222, 1226 (9th Cir. 1995); In re Grand Jury Proceeding

1015, 1020 (11th Cir. 1993); In re Grand Jury Subpoena, 836 

(4th Cir. 1988).

39. In re Grand Jury Proceedings, 995 F.2d at 1017.

40. In re Grand Jury, 286 F.3d 153, 156, 158, 162, 165 (3

firming a decision that the grand jury subpoena prevailed); 

Subpoena, 138 F.3d 442, 445 (1st Cir. 1998) (same).

41. In re Grand Jury Subpoena Duces Tecum Dated April 1

1221, 1226 (2d Cir. 1991).

42. SEC v. Merrill Scott & Assocs., 600 F.3d 1262, 12

2010); SEC v. The Street.com, 273 F.3d 222, 229 (2d Cir. 200

ough of Stroudsburg, 23 F.3d 772, 790 (3d Cir. 1994); see also 

Ernst, 677 F.2d 230, 232 (2d Cir. 1982).

43. The Street.com, 273 F.3d at 229.
11

A district court observed, A blanket protective 

likely to be subject to modification than a more sp

order because it is more difficult to show a party rea

on a blanket order in producing documents or subm

osition.”46

Intervention

A non-party may challenge a protective order or see

upon the court’s granting the non-party permission to 

For an outside person to disturb a protective ord

must demonstrate standing.48 Courts often find tha

have standing to challenge protective orders.49

 

44. Id.

45. Id. at 233.

46. In re Ethylene Propylene Diene Monomer (EPDM) An

F.R.D. 308, 319 (D. Conn. 2009) (granting a motion to interv

protective order to permit the intervening party access to conf

for use in similar litigation).

47. Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F

Cir. 1994); Pansy v. Borough of Stroudsburg, 23 F.3d 772, 

1994) (reversing a trial court’s denial of a newspaper’s inte

modification of an order preserving the confidentiality of a sett

and remanding for a determination of whether the confidential

tified by good cause.); Beckman Indus., Inc. v. Int’l Ins. Co., 9

(9th Cir. 1992); In re Beef Indus. Antitrust Litig., 589 F.2d 78

Massachusetts v. Mylan Labs., Inc., 246 F.R.D. 87, 91–93 (D. 

Fed. R. Civ. P. 24(b).
12

have standing to challenge the protective order in a c

Decisions on motions to intervene to modify a p

are reviewed for abuse of discretion.54

Efficient Discovery in Other Cases

If a party has obtained protected discovery, and a no

be entitled to the same discovery in another case, 

presiding over the first case has discretion to modify 

order to permit the party to share the discovery 

party.

55 Such a modification can make discovery in t

more efficient.56

 

48. Deus v. Allstate Ins. Co., 15 F.3d 506, 525 (5th Cir. 199

49. E.g., Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 

(7th Cir. 1994).

50. Bond v. Utreras, 585 F.3d 1061, 1071–72 (7th Cir. 2009

51. Id. at 1065.

52. Id.

53. Id. at 1065, 1071–72.

54. Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 112

2003); Griffith v. Univ. Hosp., L.L.C., 249 F.3d 658, 661 

Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 472 (9th C

55. Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 11

Cir. 2003) (“No circuits require the collateral litigant to obtai

termination from the court overseeing the collateral litigation p

the modification of a protective order from the court that iss

Wilk v. AMA, 635 F.2d 1295, 1299 (7th Cir. 1981); see Unit

Corp., 596 F.2d 10 (2d Cir. 1979) (holding that discovery mate
13

other factors that counsel against or in favor of the m

For example, a court of appeals affirmed a distr

fusal to modify a protective order in a class action, b

ficiency produced by the modification was outweigh

den of having to notify class members of the modif

potential upset to the class-action settlement that mig

Sealing

If information subject to a protective order is filed 

such as attached to a discovery motion or a motion 

judgment, the information should not be sealed un

 

civil suit subject to a protective order are nevertheless subject 

partment’s antitrust division’s statutory civil investigative dem

re Film Recovery Sys., 804 F.2d 386, 389–90 (7th Cir. 1986); O

Co. v. Carter, 332 F.2d 260, 265–66 (9th Cir. 1964).

56. Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 11

Cir. 2003) (“Allowing the fruits of one litigation to facilitate pr

cases advances the interests of judicial economy by avoiding th

cation of discovery.”); Pansy v. Borough of Stroudsburg, 23 F

Cir. 1994) (“Circumstances weighing against confidentiality 

dentiality is being sought over information important to public 

and when the sharing of information among litigants would 

and efficiency.”).

57. Wilk v. AMA, 635 F.2d 1295, 1296–97 (7th Cir. 1981).

58. Griffith v. Univ. Hosp., L.L.C., 249 F.3d 658, 659, 6

2001).
14

Criminal Cases

Courts can enter discovery protective orders in cri

well as in civil cases.61

Although the Federal Rules of Civil Procedu

standard for confidential-discovery orders in Rule 2

Federal Rule of Criminal Procedure governing dis

tive orders, Rule 16(d), concerns, by its terms, prote

covery obligations rather than restrictions on disc

parties.

 

59. Brown v. Advantage Eng’g, Inc., 960 F.2d 1013, 1014

1992) (holding that it was an abuse of discretion to seal court 

compelling reason); Joy v. North, 692 F.2d 880, 884, 893–9

(finding that it was improper for the district court to seal a dis

filed to support a summary judgment motion).

60. Citizens First Nat’l Bank of Princeton v. Cincinnati In

943, 944 (7th Cir. 1999) (“The parties to a law suit are not the 

have a legitimate interest in the record compiled in a legal pro

Southeastern Milk Antitrust Litig., 666 F. Supp. 2d 908, 916 (

(referring to a magistrate judge the task of determining what 

unsealed upon a determination that the court had permitted the 

too readily); see Robert Timothy Reagan, Sealing Court Reco

ings: A Pocket Guide 19 (Federal Judicial Center 2010) (pro

note 1).

61. Fed. R. Crim. P. 16(d)(1); United States v. Buchanan, 6

527 (8th Cir. 2010) (concerning a stipulated protective order g

ery in a crack cocaine prosecution).
15

the sharing of classified information with persons 

receive the information by the Executive Branch.

Protective orders can also protect unclassified 

criminal cases.64 In one case, the district judge found 

prohibit the defendant from disseminating without 

sion records from a journalist’s not-yet-published i

the defendant (protecting the journalist’s economic 

non-parties’ medical records (protecting their privacy

did not approve a provision of the proposed protec

called for fruits of protected discovery to be filed un

matically; the judge required filings to be sealed only 

approval by the court.66

Appeal and Mandamus

Some courts review decisions on issuing protective o

ing protective orders, and intervention to challenge 

 

62. Robert Timothy Reagan, National Security Case Manag

tated Guide 9 (2011).

63. In re Terrorist Bombings of U.S. Embassies in East Af

115–30 (2d Cir. 2008).

64. United States v. Carriles, 654 F. Supp. 2d 557, 562 (W.D

65. Id. at 567–68; see id. at 565 (holding that because the

showing that sensitive discovery would be extensive a blanke

was not necessary).

66. Id. at 570–72.
16

 

67. SEC v. The Street.com, 273 F.3d 222, 228 (2d Cir. 200

Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 8

1994) (intervention); Beckman Indus., Inc. v. Int’l Ins. Co., 9

(9th Cir. 1992) (intervention); McCarthy v. Barnett Bank, 876 

Cir. 1989); Stack v. Gamill, 796 F.2d 65, 68 (5th Cir. 1986) (in

tindell v. ITT Corp., 594 F.2d 291, 293–94 (2d Cir. 1979) (

MCL 4th § 15.11, at 210 (Federal Judicial Center 2004);.

68. Glenmede Trust Co. v. Thompson, 56 F.3d 476, 48

(whether to grand a protective order); Cipollone v. Liggett Gro

1108, 1118 (3d Cir. 1986) (whether to grant a protective orde

635 F.2d 1295, 1298 (7th Cir. 1981) (modification); Iowa Bee

v. Bagley, 601 F.2d 949, 953–54 (8th Cir. 1979) (modification)

69. Rohrbough v. Harris, 549 F.3d 1313, 1321 (10th Cir. 2

Street.com, 273 F.3d 222, 228 (2d Cir. 2001); Beckman Indus

Co., 966 F.2d 470, 472 (9th Cir. 1992); Brown Bag Software v

960 F.2d 1465, 1469 (9th Cir. 1992); McCarthy v. Barnett Ba

91 (11th Cir. 1989); Wilk v. AMA, 635 F.2d 1295, 1299 (7th C
Judge dwad C. ado, U.S. Cout oppeas ote tCcut

Judge Loretta A. Preska, U.S. District Court for the Southern District o

Judge Kathryn H. Vratil, U.S. District Court for the District of Kansas

Judge Thomas F. Hogan, Director of the Administrative Office of the 

Director

Judge Jeremy D. Fogel

Deputy Director

John S. Cooke

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