protective order is not about keeping people safe (like domestic violence restraining orders). In civil litigation, a protective order is simply an agreement or court order that controls how confidential information will be handled during discovery.
Think of it this way: Discovery is based on the principle that both sides are entitled to obtain relevant information. But sometimes that information is extremely sensitive.
Examples include:
- Trade secrets
- Proprietary business information
- Customer lists
- Financial records
- Personnel files
- Medical records
- Private communications
- Source code
- Product formulas
- Strategic business plans
- Confidential settlement agreements
The parties still have to produce those documents. They just don’t want them becoming public.
A protective order says: “We’ll exchange this information, but everyone agrees to use it only for this lawsuit and to protect it from disclosure.” That’s really its purpose.
Think of it as borrowing someone’s diary. Imagine someone says, “You may read my diary because the court says you need it for this case, but you can’t photocopy it, you can’t post it online, you can’t hand it to your friends, and when the case is over, you give it back or destroy it.” That’s essentially a protective order.
Most protective orders answer questions like these:
- What information is confidential?
Usually something like documents containing trade secrets, proprietary business information, confidential financial data, personnel information, medical records, or other non-public information.
- How do you designate something confidential?
Typically stamp every page “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL,” or “ATTORNEYS’ EYES ONLY” depending on the order.
- Who may see it?
Usually limited to attorneys, parties, employees assisting counsel, experts, consultants, court reporters, arbitrator, or witnesses during deposition (sometimes). Note that the media, competitors, and unrelated third parties should NOT be permitted to see the protected information.
- What may they use it for?
A protective order and the information under the protective order is typically only for purposes of litigation or arbitration. It is not used for business advantage, marketing, competitive intelligence, or future lawsuits.
- What happens if someone accidentally produces privileged documents?
Many protective orders include a “clawback” provision. For example: an attorney accidentally produces privileged emails. The producing party notifies the other side. The receiving party must return them, destroy them, and stop using them without claiming waiver.
- How do you challenge a confidentiality designation?
Sometimes parties over-designate documents, i.e., marking an entire production “CONFIDENTIAL” when most of it isn’t. Protective orders usually establish a process: meet and confer; motion (or application to the arbitrator); judge or arbitrator decides.
- What happens after the case?
Usually, all confidential documents are returned or destroyed within a specified number of days. Attorneys may often retain one archival copy.
The Most Common Reasons for Protective Orders in Litigation Matters
- The parties anticipate producing sensitive business documents. Examples: contracts, pricing, financial records, or personnel files.
- One side has requested employee records. California privacy rights often lead to protective orders covering payroll, personnel files, and disciplinary records.
- Medical records. HIPAA isn’t enough by itself. Protective orders often govern how medical records are exchanged.
- Trade secrets. Very common in employment litigation. Examples: customer lists; pricing; formulas; software; source code.
- The judge or arbitrator requested one. Sometimes it’s simply part of the scheduling order.
Are Protective Orders Usually Negotiated?
Yes. Very often one side drafts it, the other side proposes revisions, then eventually everyone signs. Afterwards, the judge or the arbitrator signs it, or the parties stipulate to it. Many protective orders are actually titled “Stipulated Protective Order,” because everyone agrees before asking the judge/arbitrator to enter it.
Are There “Standard” Protective Orders?
Many federal district courts have model stipulated protective orders. California state courts do not have one universally applicable model, but lawyers frequently adapt language from prior cases or use firm templates.
In arbitration, organizations such as JAMS or the American Arbitration Association may also have rules or sample provisions that influence the drafting, although the parties often submit their own stipulated order tailored to the case.
Categorized in: Legal Procedure
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