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. While this list is not intended to be exhaustive, it provides a starting point for the formulation of issues by counsel seeking a protective order to restrict the spread of information produced during discovery. Before discussing each of the ten principles listed in Section I, it is appropriate to review the specific Federal Rules of Civil Procedure particularly pertinent to protective orders.