In recent years, jurisdictions like Washington and California have required or encouraged line-by-line confidentiality designations. Under the Western District of Washington Local Rule 26(c)(2), for example, parties may file protective orders to protect confidential information only if “its protection from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principles …” Furthermore, parties are encouraged to use the district’s model protective order, which requires parties to clearly identify the “portion(s)” of a document that are confidential in their productions. Model Stipulated Protective Order, W.D. Wa. Similarly, the Northern, Southern, and Central districts of California encourage parties to use model protective orders that explicitly prohibit mass confidentiality designations and require parties to designate “only those parts of material, documents, items” that qualify for protection, and thereby prohibiting “mass, indiscriminate, or routinized designations.” See, e.g., Model Protective Order, N.D. Cal. Because some courts require parties seeking to deviate from the model order to show good cause, parties may be reluctant to negotiate less narrow confidentiality restrictions.

This trend has reached New York to varying degrees as well. In New York federal courts, some judges have adopted model protective orders that require parties to designate the portion(s) of a document that require protection. By contrast, in New York state, the Commercial Division’s model protective order explicitly permits parties to designate “any document … or portion thereof” as confidential. 22 NYCRR §202.70(g) (Commercial Division Rules), Rule 11-g, Appendix F (emphasis supplied).

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