In Lowrey v. Oregon Mut. Ins. Co., No. 2:17-cv-00831-RSL 2017 WL 3769424 (W.D. Wash. August 29, 2017), a Stipulated Protective Order conceals discovery from the public. The Stipulated Protective Order says that it is not a disfavored blanket or umbrella protective order, protecting everything marked "confidential." Further, "[t]he parties acknowledge that this agreement is consistent with" local rules of Civil Procedure. (Presumably, they meant to include the Federal Rules of Civil Procedure in that claim.)
It is not consistent with the Rules of Civil Procedure.
Whoever wrote the Stipulated Protective Order followed many earlier stipulated protective orders of the same ilk in many different kinds of cases. They wrote that whenever certain information is designated "confidential," it can be used in that lawsuit so no party has an incentive to seek judicial review.
Upon the conclusion of the case, under this stipulation the designated material must either be destroyed or "returned" to the party whose lawyers designated the information as "confidential."
The Rules of Civil Procedure require a showing of "good cause" to get a protective order in the first place. The Stipulated Protective Order in this case does not require a showing of anything for information to be secret and "confidential." In particular, whoever wrote the Stipulated Protective Order did not mention the requirement of showing good cause.
To say again, the Stipulated Protective Order in this case is not unique. It follows many earlier stipulated protective orders filed in many different kinds of cases.
It does not follow the Rules of Civil Procedure.
Which is the point, of course.
Dennis Wall is the author of "Attorneys Decide, Judges Sign Off: Protecting and Sealing Concealed Evidence Including in Insurance Coverage and Bad Faith Cases" published in New Appleman on Insurance (©2017 by LexisNexis). He is currently at work on a book about agreed protective orders and how they take our money, foreclose on our homes, and change our lives.
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