UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

BIOMET 3i, LLC, et al., )

)

Plaintiffs, )

)

v. ) No. 1:16-cv-00125-TLS-SLC

)

HEATHER LAND, )

)

Defendant. )

OPINION AND ORDER

Before the Court is a second motion for entry of a stipulated protective order of

confidentiality, filed jointly by the parties, who seek approval and entry of a proposed agreed

protective order pursuant to Federal Rule of Civil Procedure 26(c). (DE 48). Because the

proposed order is inadequate in several ways, the joint motion will be DENIED with leave to

refile. 

Rule 26(c) 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). 

As noted in a previous Order (DE 32), a protective order only extends 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); Andrew Corp.

v. Rossi, 180 F.R.D. 338, 342 (N.D. Ill. 1998) (same). 

Here the parties’ second proposed order still fails to set forth narrow, demarcated

categories of legitimately confidential information. It allows a party to designate material
confidential if it is “confidential or proprietary technical, scientific, financial, business, health, or

medical information designated as such by the producing party, the disclosure of which would

cause serious injury or damage to the producing party.” (DE 48 ¶ 2(a)). A party must do more

than state that the disclosure will cause harm to the producing party, the party must explain how. 

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

categories are still insufficiently specific, as any document could likely be categorized as either

technical, scientific, financial, business, health, or medical information. See id. at 547-48

(emphasizing “the need for detailed analysis” and requiring that any motion for protection of

documents via sealing “analyze in detail, document by document, the propriety of secrecy,

providing reasons and legal citations”); see also Cincinnati Ins. Co., 178 F.3d at 945 (noting that

a broad protective order granting carte blanche discretion to a party is invalid).

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

reasons for protection and criteria for designation . . . .” 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. 

The next problem in the proposed order is paragraph 4(f), which provides that at a

hearing or trial, a party shall designate confidential information “by requesting the court, at the

time the information is proffered or adduced, to receive the information only in the presence of

those persons designated to receive such information and court personnel, and to designate the

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transcript appropriately.” (DE 48 ¶ 7(f)). While it is permissible for the parties to request that

the Court keep such matters introduced at a hearing or at trial under seal, the parties should be

aware that the Court will not automatically permit the sealing of confidential documents

introduced as evidence or automatically permit sealing or redaction of the transcript for testimony

referencing confidential information. Documents “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.” Baxter Int’l, Inc., 297 F.3d at 547. “[V]ery

few categories of documents are kept confidential once their bearing on the merits of a suit has

been revealed.” Id. at 546. 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.” Id. Thus, the Court will

carefully review any documents or testimony presented at a hearing or at trial before agreeing to

keep such information from public inspection.

One last problem arises in paragraph 7(c)’s statement that documents which “contain”

any confidential information shall be filed electronically under seal in accordance with Local

Rule 5-3(c)(1). (DE 48 ¶ 7(c)). The problem here is that the proposed order allows documents

that “contain” confidential information to be filed entirely under seal, 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). 

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For these reasons, the parties’ joint motion for entry of the stipulated protective order (DE

48) is DENIED with leave to refile. The parties may submit a joint motion with a revised

proposed protective order consistent with the requirements of Rule 26(c) and Seventh Circuit

case law.

SO ORDERED. 

Entered this 15th day of July 2016. 

/s/ Susan Collins 

Susan Collins,

United States Magistrate Judge

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