Stipulated protective orders pretty universally require a "good faith belief" that the materials being marked "Confidential" are, in fact, worthy of being marked Confidential. But whose good faith belief are we talking about?
(Photo by Peter Dejong/AP)
In some cases, this apparently means a good faith belief by the lawyers who marked the thing "confidential" in the first place. See, e.g., Davey's Locker Sportfishing, Inc. v. Amco Ins. Co., No. 8:20-cv-01424 JVS (JDEx), 2020 WL 66818548, at *1, GOOD CAUSE STATEMENT (C.D. Cal. Nov. 12, 2020) (Stipulated Protective Order signed by USMJ; boldface in original).
In other cases, this expressly constitutes "a representation by the party or nonparty and its counsel that they believe in good faith" that the material designated "confidential" is, in fact, confidential. See, e.g., Mullins v. Humana Health Plan, Inc., No. 4:20-cv-00192-CDL, 2020 WL 6706364, at *1, ¶ 3 (M.D. Ga. Nov. 13, 2020) (Definition of Confidential Material in Stipulated Protective Order signed by U.S. District Judge; italics in original).
In still other cases, the last remaining alternative is written in the Stipulated Protective Order and the requisite "good faith" belief comes from "the producing party[.]" Multicare Health Sys. v. National Fire & Marine Ins. Co., No. C20-5559 TSZ, 2020 WL 6700924, at *1, ¶ 2 (W.D. Wash. Nov. 13, 2020) ("'CONFIDENTIAL' MATERIAL" paragraph in Stipulated Protective Order signed by U.S. District Judge; all caps in original).
Please read the disclaimer. ©2020 Dennis J. Wall. All rights reserved.
Comments