Protective orders, widely relied upon in federal civil litigation, are not automatically available, and even when in place, offer only a measure of protection against use and dissemination of information litigants may prefer to keep under wraps. Whether on an initial motion for a protective order or on a challenge to confidentiality designations made under a consensual protective order, a party seeking to limit disclosure of discovery material must make a specific showing of good cause that is often far from a foregone conclusion. Moreover, the confidentiality offered by a protective order may only be temporary, and offers no permanent assurance of non-disclosure.
Establishing ‘Good Cause’
Traditionally, parties obtained protective orders via motion pursuant to Federal Rule of Civil Procedure 26(c), which provides that for “good cause” a court may “issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Increasingly, parties have followed a route entailing less up-front litigation, entering into stipulated protective orders at the commencement of discovery, which permit any party to designate materials as confidential, subject to later challenge by any other party.
