UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

THE MEDICAL PROTECTIVE COMPANY )

OF FORT WAYNE, INDIANA, )

)

Plaintiff, )

)

v. ) CAUSE NO. 1:13-CV-357

)

AMERICAN INTERNATIONAL SPECIALTY )

LINES INSURANCE COMPANY, )

)

Defendant. )

OPINION AND ORDER

Before the Court is a Joint Motion for Protective Order seeking approval of a proposed

Stipulated Protective Order and Non-Waiver Agreement (the “Proposed Order”) under Federal

Rule of Civil Procedure 26(c). (Docket # 38.) As the Proposed Order is inadequate in several

ways, the motion will be DENIED.

Rule 26(c)(1) allows the Court to enter a protective order for good cause shown. See

Citizens First Nat’l Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 946 (7th Cir. 1999). 

But a protective order must extend only to “properly demarcated categor[ies] of legitimately

confidential information.” Id.; see MRS Invs. v. Meridian Sports, Inc., No. IP 99-1954-C-F/M,

2002 WL 193140, at *1 (S.D. Ind. Feb. 6, 2002) (rejecting proposed protective order because

categories of protected information were overly broad and vague); Cook Inc. v. Boston Scientific

Corp., 206 F.R.D. 244, 248-49 (S.D. Ind. 2001) (same); Andrew Corp. v. Rossi, 180 F.R.D. 338,

342 (N.D. Ill. 1998) (same). Here, the Proposed Order, which extends beyond the discovery

phase of the proceedings (Proposed Order ¶ 9), fails to set forth such properly demarcated

categories. 
The definition of “Confidential Information” in the Proposed Order is, in relevant part, as

follows: 

[A]ny document . . . that contains:

a) Nonpublic and confidential information . . . consisting of:

1. proprietary business and operations methods, including policies,

procedures and protocols; or

2. personnel and service records and files relating to employees; 

b) . . . other competitively or commercially sensitive business, marketing, or

sales information, or other confidential or proprietary commercial

information;

c) nonpublic financial information;

d) private or confidential personal information . . . .

(Proposed Order ¶ 1.) 

Thus, rather than formulating narrow, demarcated categories of legitimately confidential

information, the Proposed Order advances a vague, circular definition of “Confidential

Information” that relies upon oblique terms such as “confidential,” “proprietary,” “business,”

and “commercially sensitive.”1

 Likewise, the term “‘non-public’ is too vague. If it means only

that the information is not available to the general public, then it is insufficient because the

information must be kept secret from and not readily ascertainable by potential competitors.”

Cook, 206 F.R.D. at 248-49.

And “not all information in an employee’s personnel file is considered private.” Little v.

Mitsubishi Motor Mfg. of Am., Inc., No. 04-1034, 2006 WL 1554317, at *4 (C.D. Ill. June 5,

1 These terms are given by way of example and not as a complete list of the vague terms in the proposed

definition.

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2006). For example, “there is nothing confidential about an employee’s job title, job description,

hiring date, or work assignment and location.” Id.; see also Smith v. City of Chicago, No. 04 C

2710, 2005 WL 3215572, at *2 (N.D. Ill. 2005). 

“If the parties seek non-trade secret protection for any . . . information, they must present

reasons for protection and criteria for designation other than simply that the information is not

otherwise publicly available. They must describe a category or categories of information and

show that substantial privacy interests outweigh the presumption of public access to discovery

material.” Cook, 206 F.R.D. at 248-49.

That is, for material to be protected, it “must give the holder an economic advantage and

threaten a competitive injury–business information whose release harms the holder only because

the information is embarrassing or reveals weaknesses does not qualify for trade secret

protection.” Id. (emphasis omitted). “[M]erely asserting that a disclosure of the information

‘could’ harm a litigant’s competitive position is insufficient; the motion must explain how.”

Shepard v. Humke, No. IP 01-1103-C-H/K, 2003 WL 1702256, at *1 (S.D. Ind. Mar. 28, 2003)

(citing Baxter Int’l, Inc. v. Abbott Labs., 297 F.3d 544, 547 (7th Cir. 2002)). 

Moreover, the Proposed Order affords protection to any document that “contains”

confidential information (Proposed Order ¶ 1), rather than just protecting the actual confidential

material through a method of redaction. See Cincinnati Insurance, 178 F.3d at 945 (stating that

an order sealing documents containing confidential information is overly broad because a

document containing confidential information may also contain material that is not confidential,

in which case a party’s interest in maintaining the confidential information would be adequately

protected by redacting only portions of the document). 

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Finally, the Seventh Circuit Court of Appeals has made it clear that a protective order

may only issue if the order “makes explicit that either party and any interested member of the

public can challenge the secreting of particular documents.” Id. Here, the Proposed Order lacks

such language.

It is important to remember that “the public at large pays for the courts and therefore has

an interest in what goes on at all stages of a judicial proceeding.” Id. at 945. That is, “[w]hat

happens in federal courts is presumptively open to public scrutiny.” Hicklin Eng’g, L.C. v.

Bartell, 439 F.3d 346, 348 (7th Cir. 2006). Accordingly, a protective order “may not issue

absent an appropriate showing of good cause, as well as adherence to the other limitations the

Seventh Circuit has emphasized apply to such orders.” Shepard, 2003 WL 1702256, at *2. 

For these reasons, the Court DENIES approval of the Proposed Order submitted by the

parties. The parties may, however, submit a revised protective order consistent with the

requirements of Rule 26(c)(1) and Seventh Circuit case law.

SO ORDERED.

Enter for this 1st day of December 2014. 

S/ Roger B. Cosbey 

Roger B. Cosbey,

United States Magistrate Judge

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