In the federal courts the current climate on the subject of protective orders has resulted in more contested motions and fewer protective orders entered upon stipulation of the parties. In particular, motions filed by defendants which attempt to restrict the dissemination of information obtained during discovery face ever increasing opposition. This article outlines and briefly discusses ten principles to consider when seeking a protective order in a civil action in federal court to limit dissemination of discovered information. Whether a protective order is to be granted is left to the sound discretion of the trial court.
Discovery is a matter of legislative grace.
A party has no constitutional right of access to information made available only for purposes of trying a lawsuit. Discovery is conducted by parties in private. Discovery materials not filed with the court are not a traditionally public source of information. There is no First Amendment right of access to documents submitted to a court. The appropriate sanction for violation of a protective order by a party, an attorney, or an expert witness is a finding of civil contempt.