Confidentiality and Protective Orders: Best Uses and Worst Abuses

Confidentiality and protective orders are "an ever-expanding feature of modern litigation." In re Mirapex Products Litigation, 246 F.R.D. 668, 672-73 (D. Minn. 2007). Indeed, they are often a necessity for defendants and plaintiffs alike due to the enormously important need to protect sensitive information, such as trade secrets and other confidential financial information, from the public eye and competitors. Confidentiality and protective orders recognize this need and prevent parties from sacrificing the privacy of their proprietary information simply because they have filed or been named in a lawsuit. Id. On the other hand, litigating parties must balance the need to protect sensitive information with the general principle that the public should have open access to judicial proceedings. As a result, when drafting and negotiating a protective order, counsel must ensure that the order provides a client with the privacy that it needs without going so far that a court will not approve it. 

The complete article, "Confidentiality and Protective Orders: Best Uses and Worst Abuses," first appeared in For the Defense in July 2013.