Also known as: protective order
Written by attorneys — see sources below.
A court order that shields a party or person from annoyance, embarrassment, oppression, or undue burden or expense during discovery. The order may forbid disclosure, specify terms for production, or limit the scope of requests when good cause is shown after a good-faith conference. It applies to both paper and electronically stored information and may allocate costs or require phased production.
Piper Patel sued Paragon Construction for contract delays. Paragon identified archived project files stored on obsolete servers as not reasonably accessible. When Piper moved to compel production, Paragon filed a motion showing the retrieval would cost over $200,000. The court denied the motion to compel after finding no good cause for full production.
Paige Porter, a prosecutor, possessed internal memos that could mitigate the sentence of defendant Preston Pratt. She moved the court for a protective order allowing redacted disclosure only to defense counsel. The court granted the order after finding that full public release would endanger ongoing investigations.
Portia Price noticed the deposition of a corporate officer in a distant district. The officer's employer moved for a protective order, certifying that counsel had conferred about scheduling. The court granted the order and required the deposition to occur in the district where the action was pending to avoid undue travel expense.
After a district court ordered disclosure of internal communications, Prosperity Investments sought immediate appeal. The appellate court noted that a protective order could have limited further dissemination of the material. Because such orders were available, the court held the disclosure ruling was not immediately appealable.
In 2007 Norman Carpenter, a former shift supervisor at a Mohawk manufacturing facility, filed suit in the United States District Court for the Northern District of Georgia alleging that Mohawk had terminated him in violation of 42 U.S.C. §1985(2) and Georgia laws. According to Carpenter’s complaint, his termination followed an e-mail he sent to a member of Mohawk’s human resources department stating that the company was employing undocumented immigrants. At the time Carpenter sent the e-mail, he was unaware that Mohawk stood accused in a pending class-action lawsuit, Williams v. Mohawk Industries, Inc., No. 4:04-cv-00003-HLM (ND Ga., Jan. 6, 2004), of conspiring to drive down the wages of its legal employees by knowingly hiring undocumented workers in violation of federal and state racketeering laws. Company officials directed Carpenter to meet with Mohawk’s retained counsel in the Williams case. Counsel allegedly pressured Carpenter to recant his statements about the company’s hiring practices. When Carpenter refused, Mohawk fired him under what he maintains were false pretenses. After learning of Carpenter’s complaint, the Williams plaintiffs sought an evidentiary hearing to explore his allegations. In its response, Mohawk described Carpenter’s accusations as pure fantasy and recounted the true facts of his dismissal, stating that Carpenter had attempted to have Mohawk hire an undocumented worker, that retained counsel had interviewed him during an immediate investigation, and that the company had terminated him for blatantly violating company policy. While those events unfolded in the Williams case, discovery proceeded in Carpenter’s separate action. Carpenter moved to compel Mohawk to produce information concerning his meeting with retained counsel and the company’s termination decision. Mohawk maintained that the requested information was protected by the attorney-client privilege. The District Court agreed that the privilege applied but granted the motion to compel after concluding that Mohawk had implicitly waived the privilege through its representations in the Williams case. The court declined to certify its order for interlocutory appeal under 28 U.S.C. §1292(b). The court stayed the ruling to allow Mohawk to pursue other appellate avenues, including a petition for mandamus or an appeal under the collateral order doctrine. Mohawk filed a notice of appeal and a petition for a writ of mandamus in the Eleventh Circuit. The Court of Appeals dismissed the appeal for lack of jurisdiction under 28 U.S.C. §1291, holding that the District Court’s ruling did not qualify as an immediately appealable collateral order under Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541. The Eleventh Circuit also denied the mandamus petition. The Supreme Court granted certiorari to resolve a conflict among the Circuits concerning the availability of collateral appeals in the attorney-client privilege context.
View caseA special prosecutor subpoenaed audio recordings from the White House. The President moved for a protective order claiming executive privilege. The district court reviewed the tapes in camera and issued an order permitting limited disclosure under seal to protect national security interests.
On March 1, 1974, a grand jury returned an indictment charging seven named individuals with offenses including conspiracy to defraud the United States and to obstruct justice. Although not designated in the indictment, the grand jury named President Richard M. Nixon as an unindicted co-conspirator. On April 18, 1974, upon motion of the Special Prosecutor, a subpoena duces tecum was issued to the President requiring production of tapes, memoranda, papers, transcripts, or other writings relating to precisely identified meetings between the President and others. The President publicly released edited transcripts of 43 conversations on April 30, 1974, including 20 subject to the subpoena. On May 1, 1974, the President's counsel filed a motion to quash the subpoena under Rule 17(c) along with a claim of privilege. At a subsequent hearing, further motions to expunge the grand jury's action naming the President as an unindicted co-conspirator and for protective orders were filed by counsel for the President. On May 20, 1974, the District Court denied the motion to quash and ordered production of the materials by May 31, 1974. The court rejected claims that the dispute was a nonjusticiable intra-executive conflict and that the Judiciary lacked authority to review executive privilege. On May 24, 1974, the President appealed to the Court of Appeals, and the Special Prosecutor petitioned for certiorari before judgment, which was granted. The case was set for argument on July 8, 1974. The proceeding is a pending federal criminal prosecution in United States v. Mitchell et al. set for trial on September 9, 1974.
View caseAn independent counsel completed an investigation and prepared a final report. The subject moved the special division for a protective order sealing portions that named unindicted individuals. The court granted the order to prevent unnecessary reputational harm while still allowing public release of the core findings.
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View caseThe movant must certify a good-faith effort to resolve the dispute without court intervention and must demonstrate good cause that the discovery would cause annoyance, embarrassment, oppression, or undue burden or expense.
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Yes. A party may avoid producing ESI from sources identified as not reasonably accessible due to undue burden or cost. The requesting party may still obtain the material by showing good cause under Rule 26(b)(2)(C).
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No. The court may tailor the order to forbid only specific disclosure, limit the scope, allocate expenses, or require production under seal while still allowing other discovery methods.
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A prosecutor may seek a protective order to withhold or limit disclosure of information that would otherwise be required under Rule 3.8(d) when the tribunal finds that release would harm ongoing investigations or other protected interests.
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