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Abbott v. Lockheed Martin Corp.

December 12, 2008


The opinion of the court was delivered by: Donald G. Wilkerson United States Magistrate Judge


Currently pending before the Court is Plaintiffs' Motion to Vacate Protective Order (Doc. 117). For the reasons set forth below, this motion is DENIED.


On July 2, 2007, the Court entered into the record a Stipulated Protective Order (Doc. 68), which establishes the procedures for designating as confidential documents produced during discovery. By the terms of the order, "confidential information" is information that a party "believes, in good faith, reveals proprietary or trade secret information otherwise unavailable to the public, the disclosure of which would cause the producing party competitive or financial harm" (Doc. 68, ¶5(a), p. 2). "Highly confidential" information is information that a party "believes, in good faith, contains or constitutes information about Plan Participants and beneficiaries otherwise unavailable to the public, including Social Security numbers, Retirement Savings Plan identifiers, account activity (accruals, earnings and balances), distributions (types, amounts and recipients), tax filings, (1099's and related forms) and employment information (hire date, termination date, retirement date) or information otherwise protected by Health Insurance Portability and Accountability Act of 1996 ("HIPAA") Privacy Standards, 42 C.F.R. Part 164" (Doc. 68, ¶ 6(a), pp. 2-3). A party may designate a document by marking it "confidential" or "highly confidential" at production. The order specifies that "[t]he fact that information or material has been designated as Confidential or Highly Confidential is not determinative of whether such information is, in fact, entitled to be deemed as such" (Doc. 68, ¶ 8, p. 5). The protective order prescribes the following procedures for filing with the Court documents a party has designated confidential or highly confidential:

The filing party shall first consult with the party which originally designated the documents or other discovery material as Confidential or Highly Confidential to determine whether, with the consent of that party, redacted documents or other discovery material may be filed with the Court not under seal. All parties shall bear in mind the 7th Circuit's favor for transparency of the public record, and resulting preference for attaching to Court filings redacted rather than sealed documents. See Citizens First Nat. Bank v. Cincinnati Ins. Co, 178 F.3d 943, 945 (7th Cir. 1999). Where agreement is not possible or adequate, that portion of the Confidential or Highly Confidential submission shall be placed under seal pursuant to Local Rule 5.1(d) and shall not be made available to anyone other than as provided above, subject to a further Order of this Court or agreement of the parties. (Doc. 68, ¶ 14, pp. 7-8).


The Plaintiffs now request that the Court vacate the protective order, arguing that Defendants have used it abusively, causing an undue burden on both the Court and Plaintiffs. Plaintiffs state that Defendants have designated as confidential seven hundred thousand pages of documents, including a number of documents that are available to the public via other means. Plaintiffs argue that Defendants have labeled almost every document produced in discovery as confidential, without any "reasonable basis to assert that [the documents] reveal any proprietary and trade secret information." In addition to the "improper designations," Plaintiffs further object that the protective order places them in the "untenable" position of having to ask the Court for permission to file under seal the documents designated as confidential by Defendants, when it is Defendants who "should be required to establish that the documents are entitled to confidential treatment" (Doc. 117, p. 3).

Thus, Plaintiffs contend, the protective order allows Defendants "unfettered discretion to impede Plaintiffs' ability to file pleadings which reference discovery materials."

Plaintiffs therefore ask the Court to vacate the protective order under Federal Rule of Civil Procedure 60(b)(6). Plaintiffs contend that the protective order should be vacated because it is contrary to the Seventh Circuit's requirements as established in Citizens First Nat'l Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 945 (7th Cir. 1999). Plaintiffs argue that Defendants' Motion for Protective Order did not make the necessary specific factual demonstrations of good cause, and further, they did not make any assertion justifying entry of a protective order. Now that Plaintiffs have attempted to conform to the protective order as entered, they have found it "unworkable."

In response, Defendants argue that there is no reason to vacate the protective order because it conforms to Seventh Circuit precedent and it "has not created any significant difficulty" in the litigation (Doc. 122, p. 3). Defendants assert that the protective order provides specific procedures regarding filing of documents under seal and further, that they have consented to filing unsealed all documents Plaintiffs have sought to enter into the record.


The Court notes at the outset that it has no authority to vacate the protective order pursuant to Federal Rule of Civil Procedure 60(b)(6), which is "by its terms limited to'final' judgments or orders" and is therefore "inapplicable to interlocutory orders." Santamarina v. Sears Roebuck & Co., 466 F.3d 570, 571 (7th Cir. 2006). The only authority a district court has to reconsider a prior ruling made in the same case derives from the doctrine of the law of the case, "which authorizes such reconsideration if there is a compelling reason, such as a change in, or clarification of, law that makes clear that the earlier ruling was erroneous." Id. at 572 (citing Agostini v. Felton, 521 U.S. 203, 236 (1997)). The law of the case doctrine "embodies the notion that a court ought not to revisit an earlier ruling in a case absent a compelling reason, such as manifest error or a change in the law, that warrants re-examination." Minch v. City of Chicago, 486 F.3d 294, 301 (7th Cir. 2007). "This presumption against reopening matters already decided reflects interests in consistency, finality, and the conservation of judicial resources." Id. (citing Analytical Eng'g, Inc. v. Baldwin Filters, Inc., 425 F.3d 443, 454 (7th Cir. 2005)).

Rule 26 of the Federal Rules of Civil Procedure permits litigants to seek an order to protect relevant and discoverable material. This Court has a duty, however, to ensure that all proposed protective orders strike a proper balance between the public's interest in accessing non-confidential information and the parties' interest in maintaining confidentiality with regard to materials unsuited for public disclosure. Citizens First Nat'l Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 945 (7th Cir. 1999) ("The judge is the primary representative of the public interest in the judicial process and is duty-bound therefore to review any request to seal the record (or part of it)."). The Seventh Circuit holds the view that "the tradition that litigation is open to the public is of very long standing." Union Oil Co. of California v. Leavell, 220 F.3d 562, 567 (7th Cir. 2000). Requests to seal documents and proceedings "in order to implement the parties' preferences for seclusion" have been "uniformly rejected." Id. at 568.

The Court must make a finding that "good cause" exists for sealing some part of the record; the Court may not "rubber stamp" the parties' agreed-upon stipulation of confidential materials without making the necessary finding of good cause. Citizens, 178 F.3d at 945. The Court also cannot give the parties "virtual carte blanche" to seal whatever portions of the record the parties so designate. Id. at 944. The ...

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