Protective Orders Regarding Confidential Info

The definition of "document," as in a request for production of documents, includes electronic data. See, e.g., Fed. R. Civ. P. 34(a) (a request for production of documents includes data compilations); Simon Property Group, L.P. v. mySimon, Inc., 194 F.R.D. 639, 640 (S.D. Ind. 2000) (holding that "computer records, including records that have been 'deleted,' are documents discoverable under Fed. R. Civ. P. 34); Playboy Enterprises, Inc. v. Welles, 60 F. Supp. 2d 1050, 1053 (S.D. Cal. 1999) (granting plaintiff access to defendant's hard drive in order to obtain "deleted" e-mails).
Most states will issue a protective order to a party or nonparty from whom discovery is sought. Typically, these orders are requested to protect confidential information contained in documents and other things from public disclosure.

Discoverable electronic information includes, but is not limited to:

  • Voicemail messages and files (including backups);
  • E-mail messages and files (including backups and "deleted" e-mails);
  • Data files;
  • Program files;
  • Backup and archival tapes;
  • Temporary files;
  • System history files;
  • Web site information stored in textual, graphical, or audio format;
  • Web site log files;
  • Cache files (which can reveal Internet activity);
  • Cookies (containing user information collected by Web site operators) Kleiner v. Burns, 2000 WL 1909470, at 4 (D. Kan. Dec. 15, 2000);

The alternative means of production generally include:

  • Hard copy or printouts from hard copies are nonsearchable, may be voluminous, but require no technology to access.
  • Digital images (usually TIFF or PDF files). These are universal file formats that can be thought of as a "picture" of the hard copy. They are easily stored, reviewed, and printed with the help of generally available software and are usually word-searchable.
  • "Native formats." These are the raw digital files, for example, the original Microsoft Word file. They can be accessed and searched using the original software or specialty software. Files produced in this format will contain "metadata."

"Document" is broadly defined by most states and the Federal Rules of Evidence. When the client receives a document request in the context of litigation, it should trigger delivery, not only of available hard copies of responsive documents, but an evaluation as to whether electronic data responsive to the request may exist. Lawyers should become familiar with how data is maintained and the client's archiving and backup procedures. Find out where these electronic documents can be stored, including computer hard drives, personal digital assistants (PDAs), mobile phones, Blackberry-type devices, floppy disks, cache memory, USB drives, backup tapes, servers and optical disks, such as DVDs or CDs.

When drafting a protective order, give consideration to the following:

1. How documents and electronic evidence will be designated or labeled.

2. Who will be able to see the documents. Will clients, certain designated representatives of clients, attorneys only, experts, and lay witnesses see the evidence produced under the protective order?

3. Shall the information in the evidence be used for purposes other than the present litigation?

4. What is the mechanism for objecting to the classification placed on the evidence by a party?

5. What happens to the evidence at the conclusion of the case?

Types of Protective Orders

In Michigan, MCR 2.302(C)(1)-(9) lists various types of protective orders that may be entered. The trial court is not limited to situations covered by the court rule.

Upon receiving a Discovery Request for Production of Documents and Things, it is advisable to immediately notify the other parties of the need for a protective order. This notification should be made early in the litigation process; certainly no later than when responding to discovery that seeks information sought to be protected. Often, the parties are willing to stipulate to a reasonable protection order. Negotiated protective orders are especially common in disputes that involve the production of confidential business information.

Two primary types of protective orders are used when a party seeks to protect confidential information:

(a) umbrella confidentiality orders, which establish a presumption that documents designated as "Confidential" or "Confidential-Attorney's Eyes Only" are indeed confidential until that designation is successfully challenged, and
(b) orders requiring a document-by-document review and decision by the court when confidentiality is asserted.

Some of the elements to be considered when negotiating an umbrella confidentiality order include:

1. The persons to whom the information can be disclosed without prior court approval;

2. The extent to which information can be disclosed to clients;

3. The process for disclosing information to experts;

4. Whether the information can be used by counsel in other related litigation;

5. The process for maintaining the security of the information, such as storing it in a locked room or file cabinet;

6. The extent to which information can be copied or otherwise reproduced;

7. Procedures for challenging the confidentiality of certain documents or things;

8. Use of confidential information in depositions and at trial;

9. Procedures for notifying the party producing the information if the information is subpoenaed; and

10. Whether the confidential information is to be destroyed or returned to the producing party at the conclusion of the litigation. FA

Bob Guyot is a family law attorney in Traverse City, Michigan, and a member of the Family Advocate Editorial Board.

Published in Family Advocate, Volume 29, No. 3, Winter 2007. © 2007 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.