Stipulated Confidentiality Agreement And Protective Order

In a trio of decisions made this summer, Shane Group Inc. v. Blue Cross Blue Shield of Michigan, 7 Beauchamp v. Federal Home Loan Mortgage 8 and Rudd Equipment Co. v. John Deere Construction & Forestry Co., 9, the U.S. Court of Appeals for the Sixth Circuit joined the ranks of federal courts that required more than a unilateral confidentiality notice, to limit the public filing of court documents. In these decisions, the court forcefully reiterated its “strict” standard for the sealing of court records. And in both the Shane Group and Beauchamp, the panels explicitly held that the existence of lump-sum protection orders, which are alone, does not comply with the standard that justifies waterproofing. Federal Rule of Civil Procedure 26(c) allows parties to apply to the court for a “safeguard decision” limiting the release of confidential discoveries in a case.1 Parties in complex cartel cases, including class actions and multi-district litigation (MDLs), often use this provision to enter into proactively agreed agreements that govern confidentiality and the use of discovery. These orders, made by the court, generally allow the producing party to unilaterally designate the material as “confidential” and to impose restrictions on the persons or organizations who may access the material. In many cases, injunctions are also intended to restrict or even prohibit parties from filing documents classified as confidential in public court documents. In these cases, either the parties submit the documents containing the information “under seal” in full or they publicly submit to the court only edited versions of the file documents.

Parties making these protection orders may feel a sense of well-being that the protection orders protect their confidential information from the public. However, some jurisdictions do not allow parties to seal court records simply because a party has classified relevant matters as confidential in the context of a protection order. For example, similarly, counsel for Beauchamp dismissed the waterproofing orders because the District Court relied entirely on the terms of the parties` protection order and made no findings to support the withholding of bids from the public registry21 It is striking to note that the Beauchamp body raised this issue “ex officio”, while both parties agreed, that the bids should be sealed and had not raised the issue in the appeal of the lower court`s summary. Judgment decision. 22 The plate cleared the waterproofing orders. 23 Consequently, the General Court annulled the `manifestly insufficient` waterproofing orders which had granted the application for waterproofing only because a party or a third party had classified the material as confidential. 18 The body found that the District Court erred in mixing the standards for designating confidential discovery material as part of a protection order with “the much higher standards” for the sealing of court records. 19 Counsel seemed particularly concerned that, in one situation, a party did not even have to obtain permission from the District Court before filing documents under lock and key.

20 In an increasing number of courts, a protection order negotiated for investigative purposes does not protect the confidential information of the parties to the proceedings from disclosure. This series of cases makes it clear that the parties in the sixth circle should no longer rely solely on their protection decisions to justify the sealing of confidential information. But the stakes of collective actions are even more important. .