Protective Orders

Protective Orders

A lawyer served with a discovery demand the lawyer considers abusive can take the objection to a judge before answering. Federal Rule of Civil Procedure 26(c) permits a party, or any other person from whom discovery is sought, to move for a protective order: a court order that forbids, limits, or sets conditions on discovery that would otherwise go forward.¹ The court may issue one for good cause, to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.²

The protective order complements the Rule 26(g) certification. Rule 26(g) is the initial control on discovery abuse: the signer certifies that a paper is warranted by law, has a proper purpose, and is not unduly burdensome or expensive, echoing the proportionality standard of Rule 26(b)(1).³ That certification disciplines the lawyer who signs. The protective order protects the person who receives the paper, and it does so by asking a judge to rule on a demand the recipient has not yet satisfied.

Any motion costs the case time, and a motion aimed at discovery can be used to stall. That is where this tool meets Rule 3.2, which requires a lawyer to make reasonable efforts to expedite litigation consistent with the client's interests.⁴ A motion that targets a specific demand and proves the harm of answering it is a legitimate use of Rule 26(c), even though it slows the case. A boilerplate motion that recites the rule's words against every request, filed to put off production, is hard to square with the duty to expedite. The unit follows the motion in order: who files it and how, what the movant must prove, and what the court may order.

Who May Move and How

Rule 26(c)(1) answers three procedural questions: who may ask for protection, where the request goes, and what the movant must do before filing. Any “party or any person from whom discovery is sought” may move. The motion goes to the court where the action is pending or, as an alternative on matters relating to a deposition, to the court for the district where the deposition will be taken. It must also include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action.⁵ The motion should be timely as well, a point taken up later in this subsection. What the movant must prove to win belongs to the next subsection.

The right to move is broad on purpose. A party served with interrogatories or document requests may move, and so may a nonparty, such as a company that holds records a litigant wants by subpoena or a witness summoned to a deposition. The cost of discovery explains the breadth. A nonparty has no stake in how the suit ends, yet it must spend its own time and money to search, copy, and appear. If only parties could seek protection, the nonparty would have to absorb the burden or resist with no ready way to put the question before a judge. A common exam error is to treat the right as belonging to parties alone.

The forum rule follows a similar logic. The ordinary forum is the court where the action is pending, because that judge knows the claims, the schedule, and the discovery already taken, and so can weigh a demand against the needs of the case.⁶ The deposition alternative solves a different problem. A witness who is to be deposed in a distant district would otherwise have to litigate in the trial court's district just to object to the terms of the deposition, and the rule lets that witness apply to the court where the deposition will be taken.⁷ The alternative reaches only matters relating to a deposition. A party seeking protection from interrogatories or document requests has no deposition dispute to point to, so that motion belongs in the court where the action is pending.

The certification requirement forces a conversation before the motion exists. Discovery disputes are often disputes over scope, and a call between the lawyers can narrow a request, move a date, or settle the terms on which sensitive records will be produced, with no judge involved. A completed conference satisfies the rule, and so does an attempt to confer, so a requester cannot defeat the motion by refusing to talk. The attempt must be made in good faith, however, and a note sent minutes before filing, with no real invitation to discuss the request, is hard to describe that way.

The next movant has the opposite problem.

The two movants differ in a way that has nothing to do with the merits: only the first shows the court that the dispute could not be settled without it. An exam stem that describes a powerful objection and then asks whether the motion should be granted may be testing procedure before it tests merit.

A certified motion must also be timely, and courts read that requirement in light of the circumstances of the case and the discovery sought.⁸ Rule 26(c)(1) sets no number of days, so timeliness is a judgment about whether the movant acted while the objection could still accomplish something. A motion filed after the discovery has been answered, or on the eve of a deposition after weeks of silence, gives a court reason to doubt that it guards against any harm and reason to suspect that it only delays, which is the concern behind Rule 3.2.⁹ A responding party may also point to a deadline that has already run. In one federal case, the defendants resisted written discovery requests, a notice, and a subpoena duces tecum by arguing that the discovery deadline had expired on February 17, 2009, and they asked the court to quash the requests or enter a protective order.¹⁰

A motion that is properly filed, certified, and timely has cleared only the procedural hurdles. The movant must still show good cause.

Good Cause Standard

Rule 26(c)(1) gives a court power to shield a party or person from discovery, and the power depends on a showing: the court may act “for good cause” to protect against annoyance, embarrassment, oppression, or undue burden or expense.¹² Good cause means facts showing that one of those named harms is a real risk if discovery proceeds. The previous subsection covered who may file; this one covers what the movant must prove.

The named harms tell the movant what the supporting facts must show. A movant who fears oppression must describe the demands that create it, and a movant who fears undue expense must describe the work and money that answering would take.

The movant bears the burden of showing good cause, which means giving the court some adequate reason for the order.¹³ Two things explain the allocation. Discovery receives broad and liberal treatment so that litigants can inform themselves about the case,¹⁴ which means a request goes forward by default and the party who wants to interrupt it must say why. And the facts that would justify an interruption belong to the movant: how many documents exist, where they are kept, what a search would cost. The requesting party cannot know those things about the other side's files.

The showing must also be specific. One federal district court, quoting the Fifth Circuit in In re Terra International, Inc., put the standard this way: “the burden is upon the movant to show the necessity of its issuance, which contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements.”¹⁵ A conclusory statement announces a result without the facts that let a judge test it, such as calling a request unduly burdensome without saying what answering would involve. The same demand for specifics appears when the harm would come from disclosure: courts look for a clearly defined, specific, and serious injury, and broad allegations of harm do not establish good cause.¹⁶ Specifics matter because whether a burden is undue is a comparison, and a judge cannot compare a burden the motion never describes.

A movant who can describe its hardship in concrete terms stands differently. In a simple automobile negligence case, suppose the defendant schedules the plaintiff for ten depositions and asks substantially the same questions at each. The plaintiff can state the burden in plain facts, and the court will probably order that no further depositions of the plaintiff take place.¹⁷ A complete ban is the strongest relief the rule offers, and the example shows when it fits: repeated questions give the requester nothing new to set against the hardship.

The ban is the exception. Because the discovery rules give parties so much freedom, motions asking the court to forbid discovery altogether usually are denied.¹⁸ A patent suit shows the usual shape of the dispute. When the plaintiff asks the defendant's vice president at a deposition for the details of secret manufacturing processes, the defendant may seek a protective order on the ground that the plaintiff does not need those secrets to pursue the infringement claim.¹⁹ The next subsection covers one common result of such a motion. The same freedom of discovery explains why a witness ordinarily cannot avoid a deposition by claiming to know nothing relevant: the party seeking the deposition is entitled to test that claim.²⁰

The standard also bears on the duty to expedite. A motion that recites the rule's language without supporting facts leaves no purpose visible except postponement, and Rule 3.2 asks for reasonable efforts to expedite litigation consistent with the client's interests.²¹ A specific showing therefore does two jobs at once: it carries the burden on the merits, and it shows that the motion is aimed at a real hardship.

Two mistakes recur on exams. The first treats a label as good cause, so that a stem saying the documents are confidential or the request is burdensome seems to settle the question for the movant, when the movant must still prove the harm with facts. The second assumes that a movant who proves good cause is entitled to have discovery forbidden, when the court may choose among a range of orders and motions to forbid discovery usually fail. The inquiry to run asks who bears the burden and whether the supporting facts are specific.

Available Relief

Rule 26(c)(1) introduces its remedies with the words “including one or more of the following,” so the list that follows gives examples of what a court may order and leaves the judge free to combine or adapt them.²⁵ Courts have enormous discretion to shape protective orders to the wide array of discovery disputes that arise in a lawsuit.²⁶ Among the orders the rule describes are these:

• forbidding the disclosure or discovery;²⁷
• specifying terms for the disclosure or discovery, including time and place or the allocation of expenses;²⁸
• prescribing a discovery method other than the one selected by the party seeking discovery;²⁹
• forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;³⁰
• designating the persons who may be present while the discovery is conducted;³¹
• requiring that a deposition be sealed and opened only on court order;³² and
• requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way.³³

The range exists because the harm a movant fears is usually narrower than the discovery itself. A trade secret is damaged when it spreads, a witness is burdened by the form of the examination, and a sensitive subject can be walled off without ending the inquiry. A remedy aimed at the specific harm leaves the rest of the discovery in place, so the requester still gets the facts the case needs. If the court could only grant or deny the motion, it would have to choose between leaving the movant exposed to the harm and depriving the requester of evidence.

Confidential commercial information shows the match between harm and remedy most clearly. In a patent suit where the plaintiff asks the defendant's vice president about secret manufacturing processes, one common type of protective order allows the information to be discovered but bars the discovering litigant from disclosing it publicly. On those facts, the judge might let the plaintiff obtain the defendant's trade secrets but prevent the plaintiff from passing them to any third party.³⁴ The rule's own language contemplates such an order, since it speaks of confidential information being “revealed only in a specified way.”³⁵ A secret's value lies in its exclusivity, and this order protects the exclusivity while the plaintiff still receives what the case may require.

A second family of orders adjusts the method of discovery. Usually the court will not interfere with the choice made by the party seeking discovery, but if the examination will be brief or simple, or there are other reasons why written questions will suffice, the court will order the deposition taken that way.³⁶ The rule's power to prescribe a method other than the one selected is the source of that authority.³⁷

The two motions ask for the same thing, but only the first describes an examination so narrow that the requester loses nothing by the change. Forbidding the discovery altogether sits at the far end of the range, and the ten-deposition example in the last subsection showed when it fits: the requester has nothing new to gain. Otherwise, the freedom the rules give discovery means that a motion for that relief usually is denied.³⁸

The remaining items on the list work the same way, because each is a condition on discovery in place of an end to it. The court may confine the matters that may be inquired into, designate who may be present while discovery is conducted, or require that a deposition be sealed and opened only on court order.³⁹ Conditions can also concern sequence. In Campen v. Stone, a state-court opinion applying its own Rule 26(c), the court explained that a defendant facing pretrial discovery of its financial status may ask for an order requiring the plaintiff first to make a prima facie showing that punitive damages are a viable claim.⁴⁰ Sequencing the discovery that way spares the defendant a sensitive disclosure unless the claim that makes it relevant has some support.

The rule also covers the movant who loses. 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, and Rule 26(c)(3) sends the award of expenses to Rule 37(a)(5).⁴¹ The first provision keeps a failed motion from working as a way to buy time, since the court can set the terms on which the held-up discovery now goes forward. The second attaches the possibility of an expense award to the motion itself. Both provisions fit the concern of Rule 3.2, because a lawyer who files a motion with no purpose beyond delay gains no lasting postponement.⁴²

An exam stem that describes a successful protective-order motion usually tests whether the answer matches the remedy to the harm. A confidentiality concern points to guarded disclosure, a concern about the form of the examination points to a different method or limits on who attends, and repetitive discovery is the situation in which an outright ban becomes likely. Answer choices that offer only a ban or unlimited discovery overlook the middle ground where most protective orders sit.