Seeking a Rule 26(c) Order

Seeking a Rule 26(c) Order

Rule 26(c) hands the federal judge a menu of orders for discovery that the rules would otherwise permit. Some entries stop or reshape the discovery itself, and others govern how information is handled once exchanged. One entry, for example, lets the court require that a trade secret or other confidential research, development, or commercial information not be revealed, or be revealed only in a specified way.¹ Each entry is defined by what it does to disclosure, and the court chooses the one that fits the interest the movant is trying to protect.

A power that any party could invoke by calling its information sensitive would swallow the default that relevant, proportional information is open to discovery. The rule therefore pairs the power with three safeguards. A procedure puts the dispute before a judge only after the parties have tried to settle it, a showing screens out claims that rest on a mere preference for secrecy, and a range of relief lets the judge restrict discovery no further than the harm requires. The subsections below follow that order. They cover how a party moves, what it must show, and what the court may then do, first to limit or block discovery and then to control who attends and who sees the results.

Motion and Certification

Rule 26(c)(1) lets a party, or any person from whom discovery is sought, move for a protective order in the court where the action is pending or, as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken.² The motion must certify that the movant has in good faith conferred or attempted to confer with the other affected parties to resolve the dispute without court action.³ Those two sentences of the rule answer three questions: who may ask, where, and with what. Each answer has a reason behind it.

The phrase “any person from whom discovery is sought” reaches beyond the litigants.⁴ A non-party served with a subpoena can suffer the same burden or embarrassment a party can, and the rule gives it the same access to the judge. A party can move as well, as when a deposition notice targets one of its officers or a document request reaches its own files.

The motion ordinarily goes to the court where the action is pending, which is best placed to weigh the competing needs of the parties affected by discovery.⁵ The deposition-district alternative applies only to matters relating to a deposition. A dispute over whether, when, or how a witness will be examined at a particular place fits there, and every other dispute belongs in the court where the action is pending.⁶

The conferral certification exists because discovery is built to run without the judge. Apart from physical and mental examinations, discovery proceeds without court intervention unless a dispute arises.⁷ Requiring the movant to confer first sends the dispute back to the lawyers, who can often resolve it by narrowing a request or agreeing on conditions. A person seeking a protective order must therefore meet and confer and make a good-faith effort to resolve the dispute before it shows good cause.⁸ The rule asks only that the movant have conferred or attempted to confer, but it does ask, and a motion without the certification omits something the rule says it must include.

Rule 26(g) carries a different certification, and the two should not be confused. Rule 26(g) is the initial control on discovery abuse, and it operates on the papers a party serves or signs before any protective-order motion exists.⁹ Its certification resembles Rule 11's, in that it certifies that the papers are warranted by law and have a proper purpose, but it also warrants that disclosures are complete and correct as of the time they are made.¹⁰ It further warrants that the discovery is not unduly burdensome or expensive, which echoes the proportionality standard of Rule 26(b)(1).¹¹ Rule 26(g) thus disciplines the party who serves or answers discovery, and the Rule 26(c)(1) certification disciplines the party who asks the judge to intervene.

A party that objects to a request has two routes. It can answer what is not objectionable and register an objection to the rest, leaving the requesting party to decide whether to move to compel. At that point the objecting party explains its position to the judge, and the need for court involvement may never arise if the requesting party, after reviewing the answers, drops the unanswered questions.¹² Alternatively, the party can move for a protective order to avoid responding.¹³ The first route leaves the initiative with the requesting party. The second gives it to the resisting party, who can seek a ruling before the date for compliance.

The first retailer treated an objection as if it were a motion. A party that finds a request objectionable must seek an order of protection to avoid sanctions, because an objection that no judge has been asked to resolve does not excuse noncompliance.¹⁴ The first route above suits objections to particular questions. A party that objects to the request itself and means to stand on that objection must ask the court for protection.

The motion should be timely, a limitation measured against the circumstances of the particular case and the discovery sought.¹⁵ A motion that arrives after the noticed date risks being treated as untimely. Courts can also set the clock themselves. In Flores the court ordered that if the plaintiffs served a compliant notice of Dr. Flury's deposition, the defendant had to file and serve a motion for a protective order that the deposition not take place within fourteen days after service of the notice, failing which the deposition would take place as noticed.¹⁶ The order shows who carries the burden of acting. The resisting party must move within the time allowed, and silence lets the discovery go forward.

Denial has consequences of its own. If a motion for a protective order is wholly or partly denied, the court may, on just terms, order that any party or person provide or permit discovery.¹⁷ A bare denial would leave the discovery still resisted and the requesting party in need of a further order, and this provision lets the court convert the denial into that order on the spot. Once such an order issues, continued refusal brings the sanctions of Rule 37 into play.¹⁸ Rule 37(a)(5) governs the award of expenses,¹⁹ and the court has discretion under Rules 26(c)(3) and 37(a)(5) to require the losing party on the motion to pay the expenses incurred in relation to it.²⁰ An unjustified motion, or unjustified resistance, can therefore cost the party that loses.

Showing Good Cause

Rule 26(c)(1) allows an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense only for good cause.²² The movant carries the burden, so it must give the court some adequate reason for the order.²³ A preference for secrecy is not a reason.

The reason must also be specific. The party seeking confidentiality shows good cause by demonstrating a particular need for protection, and it bears the burden of showing the injury with specificity.²⁴ One common formulation requires a clearly defined, specific, and serious injury, and broad allegations of harm do not qualify.²⁵ The demand for specifics follows from the judge's task. The court must set the claimed injury against the requesting party's need, and a general fear gives it nothing to weigh.

The two stages of Seattle Times Co. v. Rhinehart show how much the record matters. The plaintiffs, who included the Aquarian Foundation, moved for an order restraining the defendants' use of what discovery revealed.²⁶ The trial court first denied the motion because the facts alleged were too conclusory to show good cause, but it made the denial without prejudice to a motion directed at specifically described discovery materials and supported by a factual showing.²⁷ The court later issued a protective order, persuaded by affidavits. It covered the plaintiffs' financial affairs and the names and addresses of members, contributors, and donors, and it barred the petitioners from publishing, disseminating, or using that information except as needed to prepare for and try the case.²⁸ The Supreme Court said these facts illustrate the concerns that justifiably may prompt a court to issue a protective order.²⁹ The same kind of relief was sought at both stages, and what separated denial from grant was the factual showing.

The demand for particulars applies to burden and expense just as it does to confidentiality. A Rule 26(c) order can keep information confidential, narrow a request, permit production in a particular format, deny discovery altogether, or shift or share costs.³⁰ A judge who has the records manager's hours and dollars can choose among those remedies, while a judge who has only the word “oppressive” cannot.

The injury need not be financial. It need be no more than embarrassment, so a party does not have to establish a monetizable loss.³¹ The movant must still show the embarrassment with specificity, but the showing is not measured in dollars.

Privacy interests fit within that reach. Suppose a harassment plaintiff is asked to identify her past sexual partners, and the defendant hopes the answers will corroborate his version of events at his bar. She can object because of the private nature of the information, or she can move for a protective order barring its production.³² Relevance does not end the inquiry, because even relevant evidence is not necessarily discoverable, and Rule 26(c) lets the court limit discovery where disclosure may not be justified.³³ A federal district court in California entered an order of this kind in Priest v. Rotary, barring inquiry into intimate aspects of the lives of sexual-harassment plaintiffs. Evidence Rule 412 adds its own advance-notice procedure at trial. A party intending to offer evidence under subdivision (b) must file a written motion at least 14 days before trial that specifically describes the evidence and its purpose, unless the court for good cause sets a different time or permits filing during trial. The party must also serve the motion on all parties and notify the alleged victim or the victim's guardian or representative.³⁴

Good cause is a weighing exercise, and no category of information is automatically protected or automatically open. The Third Circuit declined to treat a state's records as a privileged class, because a privilege would let the state withhold or release an entire class of documents regardless of the complexities of the particular case. It preferred an approach that balances the need to protect sensitive information against the need to make relevant material available.³⁵ Because the interests on both sides can be very significant, the court must define the scope of any release with care.³⁶ The trial court is best placed to weigh those competing needs, which is why it receives substantial latitude to fashion protective orders.³⁷

A motion that merely asserts that disclosure would be harmful, or that labels records confidential, without naming a specific injury, is a conclusory showing. The expected ruling is denial without prejudice to renewal with specifics, as in the first ruling in Seattle Times.³⁸

Limiting or Blocking Discovery

Rule 26(c)(1) opens with a general power, for good cause, to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, and it lists specific orders as examples.⁴⁰ In the Third Circuit's rendering, the court may order that discovery not be had. It may order that discovery be had only on specified terms and conditions, including time or place, or by a method other than the one the requesting party chose. It may order that certain matters not be inquired into or that the scope be limited. And it may order that no one be present except persons the court designates.⁴¹ The list is illustrative. No rule can anticipate every circumstance that calls for a limit, so the rules permit the broadest scope of discovery and leave it to the court's enlightened discretion to decide what restrictions a case needs.⁴² This subsection takes the orders that shape the discovery itself, which answer practical questions about whether it happens, how much of it, when and where, by what method, and at whose expense. The attendance order follows in the next subsection.

A movant who wants the entire request gone should expect disappointment in most cases. The court may order that the discovery not be had, but because the rules give discovery such wide freedom, motions for that relief usually are denied.⁴³ A witness who protests that he knows nothing relevant does not escape the deposition, since the party who noticed it is entitled to test the claimed ignorance by asking questions.⁴⁴ A complete bar becomes appropriate when the discovery itself is the abuse. In a simple automobile negligence case, a defendant who schedules the plaintiff for ten depositions and asks substantially the same questions each time can expect the court to order that no further depositions of the plaintiff take place.⁴⁵ The two situations differ in what the examiner still has to learn. The examiner of the witness who claims ignorance has a legitimate interest the deposition would serve. The examiner at the tenth repetition has already received everything those questions can yield, so only the burden remains.

Between refusing to block anything and barring everything lies the order courts most often enter, which keeps information flowing while removing the feature that makes the discovery harmful. Gonzales v. Google, Inc. shows how many adjustments one order can carry. The government sought material from Google's proprietary search index, and Google resisted. After the government considerably narrowed its request, the court found the risk of trade secret disclosure substantially mitigated.⁴⁶ The court treated the list of URLs as trade secret or confidential business information to be protected by protective order, since the selective disclosure of protectable trade secrets is not per se “unreasonable and oppressive” when appropriate protective measures are imposed.⁴⁷ It granted the motion to compel only as to a set of 50,000 URLs drawn at random. Google did not have to disclose proprietary information about its database in developing the extraction protocol, the government had to pay Google's reasonable cost of that work, and whatever was produced fell under the protective order in the underlying case. The court denied the motion as to users' search queries.⁴⁸ That one order narrowed the scope by substituting a sample for the index and excluding user queries. It set terms for the extraction, placed the expense on the requesting party, and added a confidentiality layer. The government received what it legitimately needed, and the harm Google feared was controlled at each point.

Orders about time and place address logistics that can make otherwise proper discovery oppressive. The court may specify terms for disclosure or discovery, including time and place, and since the 2015 amendments the rule states expressly that those terms may include the allocation of expenses.⁴⁹ The most familiar application involves the plaintiff's own deposition. The general principle is that a plaintiff must come to the forum it chose, and that principle loses force if the plaintiff had no choice of forum to begin with.⁵⁰ The default gives way on good cause. A protective order will issue if the plaintiff is physically or financially unable to come to the forum or would suffer unusual and serious hardship.⁵¹ When the showing succeeds, courts commonly enter an alternative order. The examination is held at another place, or the party seeking it pays the deponent's travel expenses, or the deposition proceeds on written questions or by telephone, which leaves the choice of method with the party who wants the examination.⁵²

An order choosing a different method of discovery follows a similar logic. The court may direct that discovery be had only by a method other than the one the requesting party selected, which in practice usually means confining a deposition to written questions instead of oral examination.⁵³ Courts ordinarily do not interfere with the requesting party's choice of method, since that party knows best what it needs. They depart from that default when the examination will be brief or simple, or when other reasons show that written questions will suffice.⁵⁴

Sequencing orders protect sensitive information by changing when it is reached. Financial-status discovery in a punitive-damages case is the standard illustration. In Campen v. Stone, applying Wyoming's counterpart to Rule 26(c), the court explained that a defendant may seek a protective order requiring the plaintiff to make a pretrial prima facie showing that punitive damages is a viable claim before discovery of the defendant's financial status proceeds.⁵⁵ The court saw no need for delay if the plaintiff makes that showing and evidence of entitlement will be presented at trial.⁵⁶ The order postpones the discovery and conditions it on a showing that the claim that makes it relevant is viable.

Allocating expenses reaches a problem the other orders cannot. A responding party ordinarily pays its own costs of producing information, including the time and expense of retrieving and reviewing it. When those costs appear prohibitive or unreasonable, the party can and often does seek a protective order under Rule 26(c).⁵⁷ The court may then shift the cost to the requesting party or share it.⁵⁸ Cost allocation also changes incentives, because a requesting party that shares the cost has a reason to ask only for what is worth the price.

Rowe Entertainment, Inc. v. William Morris Agency, Inc. shows both sides of the question. The moving defendants argued that the burden and expense of producing e-mail would far outweigh any benefit, and they asked that the plaintiffs bear the cost if production was nevertheless required.⁵⁹ The court answered with a production protocol, offered as a set of guidelines the parties were free to modify by agreement, and with a ruling on one expense in particular. A defendant that chose to conduct a full privilege review of its e-mail before production had to do so at its own expense. The defendants had kept privileged or confidential documents in electronic form without designating them to specific files, and sorting such a mixture is the responding party's burden, just as it would be for confidential paper documents left intermingled with discoverable papers.⁶⁰

These orders overlap with the proportionality limit now found in Rule 26(b)(1), which is why a burden objection can be framed either way. Discovery must be proportional to the needs of the case, considering the importance of the issues at stake, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.⁶¹

Most problems resolve at steps three through five. The breadth of discovery and the requesting party's right to test the other side's knowledge make a complete bar the exception, and an answer proposing a narrowed, sequenced, or cost-shifted order, tied to a specific showing of burden or intrusion, will usually match what a court would do.

Controlling Attendance and Access

Rule 26(c) lets the court order that discovery be conducted “with no one present except persons designated by the court.”⁶³ The orders in the previous subsection decide whether discovery happens, how much of it, and where and by what method. The orders here let discovery go forward as the requesting party framed it and change the audience: who sits in the room, who reads the transcript, who sees the documents. That matters because much of the harm a movant fears depends on who learns the information. A lawyer who reads a confidential file to prepare a case creates little risk, while the same file in the hands of a competitor or a harasser creates a great deal. An order that narrows the audience can therefore give the requesting party what it needs and still contain the injury.

Excluding a party is the most intrusive attendance order, and Galella v. Onassis shows both its source and its limit. Before the 1970 revision of the discovery rules, a court could order discovery conducted with no one present except the parties to the action and their officers or counsel.⁶⁴ The revision enlarged the court's authority over who attends, so a court may now exclude even a party, although the Second Circuit said such an exclusion should be ordered rarely indeed.⁶⁵ In Galella the plaintiff had already been charged with violating a temporary restraining order entered to protect the defendant from further harassment. The court of appeals said it might have assessed the need to exclude him differently but could not find the ruling clearly erroneous. His conduct could be read as showing both an irrepressible intent to continue harassing the defendant and complete disregard for judicial process, and either made misconduct during the examination reasonable to anticipate.⁶⁶

Had the same plaintiff already been cited for threatening witnesses at an earlier deposition, the motion would resemble Galella, because a concrete reason to anticipate misconduct would then exist. Without such a reason the exception has nothing to rest on, and the court has narrower tools for a confidentiality concern, such as the conditions on disclosure discussed below.

Other orders control the paper instead of the room. The court may order the parties to file specified documents or information simultaneously in sealed envelopes, to be opened as the court directs.⁶⁷ That device lets each side file without first seeing the other's submission, with the court deciding when the contents emerge. Filing practice shows why the sealing power matters. Where discovery materials must be filed, trial courts customarily may order that they not be filed or that they be filed under seal. Federal district courts may also adopt local rules providing that the fruits of discovery are not to be filed except on order of the court, so access to courthouse records remains subject to the trial court's control.⁶⁸ A later section takes up how the analysis changes once discovery material is used to decide the case.

Limits on who may see discovered material, and how much, follow a single principle: release no more than the purpose requires. The Third Circuit said that, given the considerable significance of the confidentiality interests in a dispute over confidential records, it would be proper to permit no greater release than is absolutely necessary for the particular purposes for which the information is sought.⁶⁹ The order is not frozen, because the parties may later seek modification, and a district court retains the power to modify or lift confidentiality orders it has entered.⁷⁰ A narrow early order is therefore easy to justify. The court can start with the narrowest release that serves the stated purpose and widen it on a showing of need.

Commercial litigation uses the same device. In Rowe, the court's protocol for the defendants' e-mail let defense counsel review the documents produced in order to designate those that were confidential and to assert any privilege. A designated document stayed on an attorneys'-eyes-only basis until any dispute about the designation was resolved, and review by counsel or the expert did not waive any claim of privilege or confidentiality.⁷¹ The protocol narrows the audience while the designation dispute is pending. It does not turn privileged material into discoverable material, because even with such protections the disclosure of privileged documents cannot be compelled.⁷² Privilege and work-product protection remain separate grounds for withholding. Work-product protection is the protection that applicable law provides for tangible material, or its intangible equivalent, prepared in anticipation of litigation or for trial.⁷³ The no-waiver term in the protocol also previews the court-order and agreement tools for controlling waiver that appear near the end of this chapter.

The same logic reaches confidential commercial information. The court may order that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way.⁷⁴ Trade secrets carry no true privilege, and disclosure will be ordered if the issues cannot be fairly adjudicated without the information. But the court must exercise its discretion to avoid unnecessary disclosure and may attach conditions that protect the party compelled to disclose.⁷⁵ Confining the information to outside counsel is one way of specifying the manner of disclosure the rule contemplates.⁷⁶

Step two does most of the work on stems about attendance, since an adversary who merely dislikes the other side's presence has shown nothing. Step three usually supplies the answer when the stem describes a sensitive file and a requesting party who needs it for a defined purpose.