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Federal Bar Update: Southern District's uniform protective order

January 28, 2015

FedBarMaley-sigThroughout 2014, a subcommittee of the U.S. District Court for the Southern District of Indiana’s Local Rules Committee, including Magistrate Judges Denise LaRue and Debra McVicker Lynch, was hard at work on a proposed uniform protective order. The Local Rule Committee completed its work late last year, and the District judges approved the uniform protective order this month. This is good news for federal practitioners.

The Uniform Stipulated Protective Order is available on the court’s website in Word format. The preamble sets forth its importance and utility: “In order to obtain a protective order, Movant must establish good cause and confer in good faith to specify the terms of discovery and its limits, particularly as to trade secrets and protectable information under Fed. R. Civ. P. 26(c). It is strongly recommended that counsel for all parties review the applicable rules to properly implement this form. The Court has made this form available for the convenience of the parties and encourages them to consider using it because it is presumptively acceptable to the Court.” (emphasis added)

The court’s “strong” recommendation that the form be used is significant. The form is not mandatory, but when all the judges pronounce in unison that the form is “strongly recommended,” the bar should, of course, follow suit.

And, the reason the bar should use the form – at least as a starting point – is that it is “presumptively acceptable” to the court. Thus, counsel can avoid needless rejections and modifications of protective orders by starting with and benefitting from the court’s uniform document.

The basics – The uniform document contains template provisions for all the basics of any protective order: scope of protected information; application to non-parties; provisions for confidential protection and also, if necessary, for attorneys’ eyes only protection; timing of confidentiality designations and provisional protection of deposition testimony for 30 days after transcript is completed; how to challenge designations; non-waiver effect of designations; claw-back requests; inadvertent production; and treatment of confidential information upon conclusion of an action.

Notably, the protective order (as is the case now), does not have the effect of sealing a record in court. The uniform order provides, “This protective order does not authorize a party to file or maintain a document under seal. Any party that seeks to file any document, or any portion of a document, under seal, and any party that opposes its maintenance under seal, must comply with S.D. Ind. L.R. 5-11.”

Modifications – As with the court’s case management plan template, parties are able to modify the uniform plan. But there is no reason not to start with the court’s uniform plan; indeed the court “strongly recommends” use of the template.

Discovery of tax returns – A common issue in civil litigation is discovery of a party’s tax returns. In Cox v. Sherman Capital, LLC, 2014 U.S. Dist. LEXIS 178647 (S.D. Ind. Dec. 31, 2014), the court addressed discovery of tax returns. The case happened to be a Fair Debt Collection Practices Act claim, but the ruling has good guidance on this issue generally in all settings. Plaintiffs sought tax returns for two years, which Magistrate Judge Mark Dinsmore granted. On a Rule 72 challenge, Judge Tanya Walton Pratt overruled the objection.

The opinion summarizes caselaw on this subject and should be read by those encountering this issue. Among its key passages are the following: “Defendants argue that the Court should apply a heightened standard for the discovery of tax returns. However, Defendants acknowledged that the Seventh Circuit has not adopted a special discovery standard for the production of income tax returns, and the cases cited by the Defendant in which discovery of income tax returns was not permitted related to individual or third-party tax returns, not the tax returns of a company that is party to the action. Finch v. City of Indianapolis, 2011 U.S. Dist. LEXIS 67577, 2011 WL 2516242 at *4 (S.D. Ind. June 23, 2011) (recognizing the sensitivity of personal financial information and stating ‘[d]iscovery aimed at an opponent’s personal finances is a quick route to the underside of the opponent’s skin.’) (emphasis added); Charles v. Quality Carriers, Inc., No. 1:08-CV-00428-RLY-JMS, 2010 U.S. Dist. LEXIS 8284, 2010 WL 396356 at *2 (S.D. Ind. Jan. 28, 2010) (recognizing that a third party’s finances constitute ‘private and highly sensitive information’).”

And, Pratt wrote, “The sensitive and confidential nature of the requested documents also does not justify their non-disclosure. The Magistrate Judge acknowledged the sensitive nature of the financial documents, and addressed this issue by stating that such production would be protected by the Stipulated Protective Order.”•

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John Maley – jmaley@btlaw.com – is a partner with Barnes & Thornburg, LLP, practicing federal and state litigation, employment matters, and appeals. The opinions expressed are those of the author.

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