Objecting to Protective Orders and Motions
to File Documents Under Seal in Pretrial Discovery1
by R. Samuel Paz
presented at the National Lawyers Guild 2012 Conference
INTRODUCTION
This memorandum is a brief introduction into opposing protective orders either
offered by the defense for stipulation, or motions for protective orders and motions
to have pretrial discovery documents filed under seal.
It is not uncommon that defense counsel in § 1983 litigation respond to discovery
requests with a vast litany of objections. When plaintiff’s counsel either meet and
confers in preparing for a motion to compel, the defense typically offer to provide
plaintiff’s counsel the documents if they stipulate to protective orders and sealing
the documents they feel are responsive. However, it is my position that plaintiff’s
counsel should almost never agree to either, especially when it is in the context of
seeking personnel records of police officers to determine if they had have engaged
in prior bad conduct, seeking the identification of eyewitnesses to an incident, or
seeking records of prior incidences of misconduct in order to prove claims of
supervisory liability or Monell liability. I would never recommend stipulating to a
protective order for a broad category of promised, but unseen documents, as the
cases below show that most courts are reluctant to modify the protective order
even where the plaintiff can show that the documents are neither confidential or
deserving of the courts protective order.
Rather, it is my strong recommendation that your duties to the client and the court
require vigorous opposition a protective order and even more vigorous opposition
to agreeing to file documents with the court under seal unless you are absolutely
clear that such protections are warranted. In short, do not be lulled into stipulating
to save yourself the time and effort of filing a motion to compel discovery, but
rather file your motion and object to the protective order and use the law as set
forth below to bring transparency to the efforts of your litigation so that the public
can see and understand the value of defending civil rights and preventing future

1

This memo is derived in part from The Rutter Group’s California Practice
Guide: Federal Civil Procedure Before Trial Chpt. 11, Part III, C. Protective
Orders and other independent research.

violations of civil rights.
Some of the primary principles are as follows. “Courts long have recognized that
public monitoring of the judicial system fosters the important values of quality,
honesty, and respect for our legal system.” In re Providence Journal, 293 F.3d 1, 9
(1st Cir. 2002). Public access promotes confidence in the judicial system. As the
Seventh Circuit has written:
The political branches of government claim legitimacy by election,
judges by reason. Any step that withdraws an element of the judicial
process from public view makes the ensuing decision look more like
fiat, which requires compelling justification. Union Oil Co. v. Leavell,
220 F.3d 562, 568 (7th Cir. 2000).
Public access also serves as a check against abuse and corruption. See, e.g.,
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 569 (1980) (“In comparison
of publicity, all other checks are of small account.”) Public access also ensures the
appearance of fairness. See, e.g., Richmond Newspapers, 448 U.S. at 569 (“A
result considered untoward may undermine public confidence, and where the trial
has been concealed from public view an unexpected outcome can cause a reaction
that the system at best has failed and at worst has been corrupted.”).2
OPPOSING PROTECTIVE ORDERS
Upon motion by a person responding to a discovery request, and for good cause
shown, the court “may make any order which justice requires to protect a party or
person from annoyance, embarrassment, oppression, undue burden or expense.”
[FRCP Rule 26 (c.)].
Protective orders provide a safeguard for parties and other persons in light of the
otherwise broad reach of discovery. [FRCP Rule 26 (c), Advisory Comm. Notes
(1970); United States v. CBS, Inc., 666 F.2d 364, 368-369 (9th Cir. 1982)]

2

From ACLU’S Brief in Asociación de Periodístas de Puerto Rico v.
Muller, CIVIL ACTION NO. 3:06-1931 (JAF) (DCPR) filed 10-27-2008, attached
as part of the materials for this NPAP workshop.
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FRCP Rule 26 (c.) lists the following eight categories of protection available by
court order:
C
C
C
C
C
C
C
C

discovery not be had;
discovery be had on certain conditions including designation of time and
place;
discovery be limited to particular methods;
discovery be limited in scope;
persons attending discovery be limited;
depositions be sealed;
trade secrets or other confidential research, development, or commercial
information not be disclosed or disclosed only in a certain way; or,
parties simultaneously file discovery under seal. [FRCP Rule 26(c)(A)-(H)]

This list is nonexhaustive; the trial court has wide discretion to impose other
limits on discovery. [United States v. CBS, Inc., supra]
A party may also seek a protective order against the obligation to provide early
disclosures (FRCP Rule 26 (a). Granting or denial of relief from such disclosure
obligations will apparently be determined under the same standards for protective
orders generally (see below).
The trial court has broad discretion over a request for protective orders regarding
discovery; the trial court’s exercise of this discretion may be reversed only upon a
clear showing of abuse of discretion. Chem. & Indus. Corp. v. Druffel, 301 F.2d
126 (6th Cir. 1962); Galella v. Onassis, 487 F.2d 986 (2d Cir. 1973). Under the
liberal discovery principles of the federal procedure rules, those who oppose
discovery or disclosure thereof carry a heavy burden of showing why discovery
should be denied or protected against disclosure. Blankenship v. Hearst Corp., 519
F.2d 418 (9th Cir. 1975).
The fruits of pretrial discovery are, in the absence of a court order to the contrary,
presumptively public. San Jose Mercury News, Inc. v. U.S. District Court, 187
F.3d 1096, 1102 (9th Cir. 1999); Citizens First Nat’l Bank v. Cincinnati Ins. Co.,
178 F.3d 943, 944-45 (7th Cir. 1999) (“[T]he public at large pays for the courts
and therefore has an interest in what goes on at all stages of a judicial
proceeding.”).
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To obtain a protective order, the party resisting discovery or seeking limitations
thereon must show “good cause” for its issuance. [FRCP Rule 26 (c); Jepson, Inc.
v. Makita Elec. Works, Ltd., 30 F.3d 854, 858 (7th Cir. 1994) (court must find
good cause even if parties stipulate to protective order); Gray v. First Winthrop
Corp.133 F.R.D. 39, 40 (ND Cal. 1990) (citing The Rutter Group, California
Practice Guide: Federal Civil Procedure Before Trial Chpt. 11, Part III, C.
Protective Orders.)]
The moving party must make a clear showing of “good cause,” a particular and
specific need for the order. [Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th
Cir. 1975); Pearson v. Miller, 211 F.3d 57, 72 (3rd Cir. 2000) (a properly asserted
claim of absolute privilege is good cause for protective order.] This “good cause”
requirement is generally held applicable even to stipulated protective orders. [See
Makar-Wellbon v. Sony Electronics, Inc., 187 F.R.D. 576, 577-578 (ED WI 1999);
San Jose Mercury News, 187 F.3d at 1102 (holding that to gain a protective order,
the movant must make a “particularized showing of good cause with respect to any
individual document”); Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476
(9th Cir. 1992) (holding that “broad allegations of harm, unsubstantiated by
specific examples or articulated reasoning, do not satisfy the Rule 26 (c.) test”).
The following factors may be relevant in determining the existence of “good
cause” for a protective order:
C
whether the information is being sought for a legitimate purpose;
C
whether disclosure will violate any privacy interest;
C
whether disclosure will cause a party embarrassment;
C
whether disclosure is important to public health and safety;
C
whether sharing of information among litigants will promote fairness and
efficiency in the litigation;
C
whether the party seeking the protective order is a public entity or official;
and,
C
whether the case involves issues of public importance. [See Pansy v.
Borough of Stroudsburg, 23 F.3d 772, 787-791 (3rd Cir. 1994).]
C
The party seeking the protective order has the burden of showing the nature of a
specific injury, e.g., a injury shown to legitimate interests in privacy; i.e., monetary
injury is not required. [Pearson v. Miller, supra, 211 F.3d at 72-73.]

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Even if “good cause” for a protective order is shown, the court must still balance
the interests in allowing discovery against the relative burdens to the parties (and
nonparties). [In re Coordinated Pretrial Proceedings in Petroleum Prods.,
Antitrust Litig. 669 F.2d 620, 623 (10th Cir. 1982); see also Wood v. McEwen, 644
F.2d 797, 801-802 (9th Cir. 1981) (motion granted where “real question” was
whether the plaintiff had a substantive claim.]
When discovery is sought from third parties, a protective order may be more easily
obtained. [Dart Indus. Co., Inc. v. Westwood Chem. Co., Inc. 649 F.2d 646, 649
(9th Cir. 1980).] Thus, whenever you represent the party seeking a protective
order, consider whether the discovery sought may adversely affect the rights of
third parties. If so, consider having the third party interpose an objection so that
the standard for obtaining protection may be reduced. However this is not always
sufficient. (Eg., see Ericson v. Ford Motor Co., 107 F.R.D. 92, 94 (ED AR 1985)
(wrongful death suit against auto manufacturer, plaintiff sought the names of all
customers who had reported similar incidents. Auto manufacturer sought a
protective order claiming that release of the information would be “misleading and
harmful to its reputation,” however the court denied the request for a protective
order, holding that mere embarrassment is not a sufficient showing of good cause.
Just as district courts have the authority to issue protective orders, they also have
the authority to modify them. Typically, the required showing for modification
must be more substantial than the “good cause” requirement for obtaining the
protective order in the first place. Geller v. Branic Int’l Realty Corp., 212 F.3d 734
(2d Cir. 2000). Courts may also consider whether the parties relied on the order
and whether the parties stipulated to the terms of the order. Factory Mut. Ins. Co.
v. Insteel Indus., Inc., 212 F.R.D. 301 (M.D.N.C. 2002). Thus, in the case of
stipulated protective orders, the party seeking to modify the protective order has a
higher burden of showing justification for modification of the order. Am. Tel. &
Tel. Co. v. Grady, 594 F.2d 594 (7th Cir. 1978).
SEALING ORDERS AND THE PUBLIC'S RIGHT OF ACCESS TO
COURT FILES.
Most courts recognize a presumption of public access to court records based on
common law and First Amendment (free press) grounds. The public therefore
normally has the right to inspect and copy documents filed with the court. [See
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Nixon v. Warner Comm., Inc., 435 U.S. 589, 597 (1978) 98 S.Ct. 1306, 1312;
Globe Newspaper Co. v. Superior Court for Norfolk County, (1982) 457 U.S. 596,
603, 102 S.Ct. 2613, 2618; Phillips ex rel. Estates of Byrd v. General Motors
Corp., 307 F.3d 1206, 1212 (9th Cir. 2002)]
However, every court has inherent, supervisory power over its own records and
files. Thus, even where a right of public access exists, access may be denied where
the court determines that court-filed documents may be used for improper
purposes. [Nixon v. Warner Comm., Inc., supra, 435 U.S. at 598, 98 S.Ct. at 1312;
Hagestad v. Tragesser, 49 F.3d 1430, 1433-1434 (9th Cir. 1995)]
Courts generally will not automatically approve stipulations to seal matters on file
with the court containing confidential information. Rather, parties seeking a
sealing order must provide (1) a specific description of particular documents or
categories of documents they seek to protect; and (2) affidavits showing “good
cause” to protect those documents from disclosure to others. [Pansy v. Borough of
Stroudsburg, 23 F.3d 772, 776 (3rd Cir. 1994) (parties must show disclosure will
cause a “clearly defined and serious injury.”)] Thus, even if the parties may
stipulate to a protective order sealing confidential information, unless sufficient
“good cause” is shown there is no assurance that the court will grant the order.
An important consideration is that Federal courts are flooded with lodged
stipulations or motions for protective orders that sealing of documents filed with
the court to prevent public disclosure of typically ill-defined “confidential
information.” Most such requests or stipulations seek to allow the parties to file
“confidential” or “protected” information under seal with the clerk of the court
without prior court approval. Attorneys should recognize that such provisions
impose extraordinary burdens on the clerk of the court, law clerks, judges, and
other court staff both to observe the order and specially handle “sealed”
documents. When documents are sealed, they must be described obscurely in the
docket, which degrades the usefulness of the docket as an index to the court file.
Sealed documents are literally sealed in separate envelopes kept separately in a
safe. Sealing, thus, presents a risk of loss. Further, no law clerk or judge can
retrieve the court file for review because there is no longer a single case file.
Hearings become awkward due to concern about observing the sealing order.
Writing decisions about the merits is made more difficult and time consuming. To
be sure, in a proper case, these difficulties must be accommodated. However,
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sealing of documents usually only allows lawyers opportunity to put off dealing
with the underlying issues in the case.
Where good cause is shown for a protective order, the court must nonetheless
balance the potential harm to the moving party's interests against the public’s right
to access the court files. Any protective order must be narrowly drawn to reflect
that balance. The order must state that any member of the public has the right to
challenge the sealing of any particular document. [See Citizens First Nat'l Bank of
Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 944-945 (7th Cir. 1999);
Makar-Wellbon v. Sony Electronics, Inc., 187 F.R.D. 576, 577-578 (ED WI 1999)]
However the public's right of access does not apply to documents that were filed
under seal pursuant to a valid protective order. Because the court has already
determined that “good cause” exists to protect this information from public
disclosure, the party seeking access must present “sufficiently compelling reasons
why the sealed discovery information should be released.” [Phillips ex rel. Estates
of Byrd v. General Motors Corp., supra, 307 F.3d at 1213; United States v.
Corbitt, 879 F.2d 224, 228 (7th Cir. 1989).]
Sealed discovery documents do not lose their protected status because they are
attached to a nondispositive motion, e.g., motion for transfer. [Phillips ex rel.
Estates of Byrd v. General Motors Corp., supra, 307 F.3d at 1213] (“(I)t makes
little sense to render the district court’s protective order useless simply because the
plaintiffs attached a sealed discovery document to a nondispositive sanctions
motion filed with the court.”)]
However, the result is different where a sealed document is attached to a
dispositive motion decided by the court (e.g., summary judgment). As part of the
record supporting the judgment, the document must be open to public inspection.
[See Phillips ex rel. Estates of Byrd v. General Motors Corp., supra, 307 F.3d at
1213]
Respectfully, R. Samuel Paz.

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