A. Confidentiality Agreement Among the Parties (No Court Order is Necessary)
The parties may properly agree among themselves to limit disclosure of unfiled discovery information to certain specified persons during the litigation and not to voluntarily disseminate such information to other persons. Court approval of such an agreement or a court order is not necessary. Such an agreement may well address most of the parties’ confidentiality concerns since only a small subset of discovery is typically ever filed in the public court record or used during a court proceeding.
B. Protective Order Entered by the Court
If the parties require a protective order entered by the Court, they should file a motion (indicating whether it is agreed or opposed) and email a copy of their
proposed protective order to the Court in Microsoft Word format, as outlined in
the Court’s procedures for Submitting a Proposed Order, Agreed or Otherwise, for Electronic Entry by the Judge. The parties are directed to use the model
protective order approved by the full Court and set forth in the Local Rules: Form LR 26.2 Model Confidentiality Order. Parties may deviate from the model order, but when submitting
their proposed order to the Court’s e-mail address they must include both a
clean version of their order and a redline version showing any changes made
from the model order.
The Court’s issuance of the protective order will constitute the
determination, as required by Fed. R. Civ. P. 26(c), that good cause exists for
the issuance of the order. However, issuance of any protective order will not
be given preclusive effect as a determination of good cause for Rule 26(c)
purposes if, at a future time, a party or an interested member of the public
moves for relief from the limitations of the protective order. In the event of
such a motion, the Court will engage in an appropriate assessment of the
interest between privacy and public access to make a determination of good
cause as to the challenged document(s) in light of the facts then before the
Court. See Jepsen, Inc. v. Makita Elec. Works, Ltd., 30 F.3d 854,
859 (7th Cir. 1994).
C. Use of Medical Records
in Litigation.
The Court reminds counsel
that the Health Insurance Portability and Accountability Act of 1996 (HIPAA)
and its regulations create a procedure for obtaining authority to use medical
records in litigation, including requesting a qualified protective order. 45
C.F.R. § 164.512(e). A “qualified protective order” means an order that: (1)
prohibits the parties from using or disclosing the protected health information
for any purpose other than the litigation for which such information was
requested and (2) requires the return to the covered entity or destruction of
the protected health information (including all copies made) at the end of the
litigation. 45 C.F.R. § 164.512(e)(1)(v). See Example of a HIPAA Protective Order
D. Filing Material Under Seal
On September 27, 2012, the full Court approved an amendment to Local Rule 26.2 Restricted Documents. Please consult Local Rule 26.2 before seeking to file material under seal. With respect to documents filed electronically, that rule states that a party must (1) provisionally file the document electronically under seal; (2) file electronically at the same time a public-record version of the document with only the sealed material excluded; and (3) file a motion to seal before or simultaneously with the provisional filing and notice it for presentment promptly thereafter.
The Court will not approve the filing of entire pleadings or briefs under seal. See Pepsico, Inc.v. Redmond, 46 F.3d 29 (7th Cir. 1995) and In the Matter of Grand Jury, 983 F.2d 74 (7th Cir. 1992). If material is to be filed under seal, the motion to seal must demonstrate good cause by including a specific description of each document or category of information to be sealed and explaining why confidentiality is necessary.
A. Confidentiality Agreement Among the Parties (No Court Order is Necessary)
The parties may properly agree among themselves to limit disclosure of unfiled discovery information to certain specified persons during the litigation and not to voluntarily disseminate such information to other persons. Court approval of such an agreement or a court order is not necessary. Such an agreement may well address most of the parties’ confidentiality concerns since only a small subset of discovery is typically ever filed in the public court record or used during a court proceeding.
B. Protective Order Entered by the Court
If the parties require a protective order entered by the Court, they should file a motion (indicating whether it is agreed or opposed) and email a copy of their
proposed protective order to the Court in Microsoft Word format, as outlined in
the Court’s procedures for Submitting a Proposed Order, Agreed or Otherwise, for Electronic Entry by the Judge. The parties are directed to use the model
protective order approved by the full Court and set forth in the Local Rules: Form LR 26.2 Model Confidentiality Order. Parties may deviate from the model order, but when submitting
their proposed order to the Court’s e-mail address they must include both a
clean version of their order and a redline version showing any changes made
from the model order.
The Court’s issuance of the protective order will constitute the
determination, as required by Fed. R. Civ. P. 26(c), that good cause exists for
the issuance of the order. However, issuance of any protective order will not
be given preclusive effect as a determination of good cause for Rule 26(c)
purposes if, at a future time, a party or an interested member of the public
moves for relief from the limitations of the protective order. In the event of
such a motion, the Court will engage in an appropriate assessment of the
interest between privacy and public access to make a determination of good
cause as to the challenged document(s) in light of the facts then before the
Court. See Jepsen, Inc. v. Makita Elec. Works, Ltd., 30 F.3d 854,
859 (7th Cir. 1994).
C. Use of Medical Records
in Litigation.
The Court reminds counsel
that the Health Insurance Portability and Accountability Act of 1996 (HIPAA)
and its regulations create a procedure for obtaining authority to use medical
records in litigation, including requesting a qualified protective order. 45
C.F.R. § 164.512(e). A “qualified protective order” means an order that: (1)
prohibits the parties from using or disclosing the protected health information
for any purpose other than the litigation for which such information was
requested and (2) requires the return to the covered entity or destruction of
the protected health information (including all copies made) at the end of the
litigation. 45 C.F.R. § 164.512(e)(1)(v). See Example of a HIPAA Protective Order
D. Filing Material Under Seal
On September 27, 2012, the full Court approved an amendment to Local Rule 26.2 Restricted Documents. Please consult Local Rule 26.2 before seeking to file material under seal. With respect to documents filed electronically, that rule states that a party must (1) provisionally file the document electronically under seal; (2) file electronically at the same time a public-record version of the document with only the sealed material excluded; and (3) file a motion to seal before or simultaneously with the provisional filing and notice it for presentment promptly thereafter.
The Court will not approve the filing of entire pleadings or briefs under seal. See Pepsico, Inc.v. Redmond, 46 F.3d 29 (7th Cir. 1995) and In the Matter of Grand Jury, 983 F.2d 74 (7th Cir. 1992). If material is to be filed under seal, the motion to seal must demonstrate good cause by including a specific description of each document or category of information to be sealed and explaining why confidentiality is necessary.
