UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

GLENN CHERRY, )

 )

Plaintiff, ) 

)

v. ) CAUSE NO. 1:15-cv-00241-JVB-SLC

)

EMID, LLC, )

)

Defendant. )

OPINION AND ORDER

Before the Court is the parties’ joint motion for approval of a proposed stipulated

protective order pursuant to Federal Rule of Civil Procedure 26(c). (DE 33). Because the

proposed order is vague and overly broad, the parties’ motion will be DENIED. 

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

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

A protective order, however, must only extend 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 Sci. Corp., 206 F.R.D. 244, 248-49 (S.D. Ind. 2001) (same). 

Here, the language of the proposed order does not clearly define what information can be

1 “[T]he same scrutiny is not required for protective orders made only for discovery as for those that

permit sealed filings.” Containment Techs. Grp., Inc. v. Am. Soc’y of Health Sys. Pharmacists, No. 1:07-cv-997-

DFH-TAB, 2008 WL 4545310, at *3 (S.D. Ind. Oct. 10, 2008); see also Baxter Int’l, Inc. v. Abbot Labs., 297 F.3d

544, 545 (7th Cir. 2002) (“Secrecy is fine at the discovery stage, before the material enters the judicial record. But

those documents, usually a small subset of all discovery, that influence or underpin the judicial decision are open to

public inspection unless they meet the definition of trade secrets or other categories of bona fide long-term

confidentiality.” (citations omitted)). Because the proposed order in this case contemplates sealed filings, it requires

a higher level of scrutiny. 
designated as “Confidential” by the parties. It discusses protecting Plaintiff’s personnel records

and medical records (DE 33-1 ¶ 3); “employees’ mental health records” (DE 33-1 ¶ 3); “highly

confidential, proprietary, and trade secret information concerning the operation of [Defendant’s]

business” (DE 33-1 ¶ 5); “personal, private or confidential information relating to employees,

officers, directors, managers, or agents of Defendant who are not parties to this litigation” (DE

33-1 ¶ 10); and “any documents reflecting Defendant’s business relationship with its clients,

customers, and vendors” (DE 33-1 ¶ 10). It is unclear, however, which of these phrases are

actually intended to be the definition of “Confidential.” 

In any event, the categories proposed concerning Defendant’s business are overly broad. 

“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.” Cook, Inc., 206 F.R.D. at 249. “They must describe a category or categories

of information and show that substantial privacy interests outweigh the presumption of public

access to discovery material.” Id. 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. at 248. Accordingly, “merely asserting that a disclosure

of the information ‘could’ harm a litigant’s competitive position is insufficient; the motion must

explain how.” Shepard v. Humke, IP 01-1103-C-H/K, 2003 WL 1702256, at *1 (S.D. Ind. Mar.

28, 2003) (citing Baxter Int’l, Inc., 297 F.3d at 547). 

And as to personnel records, “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

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1554317, at *4 (C.D. Ill. June 5, 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 Chi., No. 04 C 2710, 2005 WL 3215572, at *2 (N.D. Ill. 2005). Moreover, with

respect to Plaintiff’s personnel and medical information, while “many litigants would like to

keep confidential the salary they make, the injuries they suffered, or the price they agreed to pay

under a contract, . . . when these things are vital to claims made in litigation, they must be

revealed.” Baxter Int’l, Inc., 297 F.3d at 547; see, e.g., Brown v. Auto. Components Holdings,

LLC, No. 1:06-cv-1802-RLY-TAB, 2008 WL 2477588, at *1 (S.D. Ind. June 17, 2008) (denying

leave to file the plaintiff’s personnel and medical information under seal where the information

was central to the case). 

Another problem is that the proposed order allows documents that “include” confidential

information to be filed entirely under seal (DE 33-1 ¶¶ 2, 5, 10), rather than solely protecting the

actual confidential information through redaction. See Cincinnati Ins. Co., 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). 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 (citations omitted). 

For the foregoing reasons, the Court DENIES the parties’ joint motion for entry of the

proposed stipulated protective order (DE 33). The parties may submit a revised proposed

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protective order consistent with the requirements of Rule 26(c) and Seventh Circuit case law.

SO ORDERED. 

Entered this 30th day of August 2016. 

/s/ Susan Collins 

Susan Collins,

United States Magistrate Judge

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