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Lawyers tend to write broadly when they write stipulations for protective orders. They give themselves powers to designate evidence "Confidential" and "Highly Confidential -- Outside Attorneys' Eyes Only." This is what they did in their stipulated protective order in the case of Edwards Vacuum, LLC v. Hoffman Instr. Supply, Inc. d/b/a His Innov's Grp., No. 3:20-cv-1681-AC, 2021 WL 186932 (D. Or. January 19, 2021).
Except that in that case the lawyers' powers were challenged. Well, more precisely, some of the powers exercised by some of the lawyers were challenged.
The plaintiff's attorneys designated a lot of deposition testimony either as "Confidential" or as "Highly Confidential." The defendants challenged these designations with a "Motion to Compel De-Designation of Certain Deposition Testimony." The defendants' motion was granted in part and denied in part, but the lesson that this case holds lies much more in the way in which the Court reached its decision, than in the decision in this particular case.
"Four legal principles are particularly relevant to Defendants' motion to de-designate, or redesignate, the confidentiality restrictions under the Protective Order of certain deposition testimony of Plaintiff's witnesses." Edwards Vacuum, 2021 WL 186932, at *1.
Transcribed into a numbered list, here are the four legal principles which this Court applied when one set of lawyers requested relabeling the "Confidential" and "Highly Confidential" designations that another set of lawyers had placed on deposition testimony:
1. The first legal principle, said the Court, was "'well-established,'" which it is at least in the Ninth Circuit where this District Court sits. That is the legal principle that discovery is "'presumptively public'" unless and until a Court has ordered otherwise. Edwards Vacuum, 2021 WL 186932, at *1.
2. "Second, a party's confidentiality designations must be reasonably and narrowly tailored to protect the confidential information the party seeks to shield from further disclosure. In other words, an 'across-the-board' designation is improper, even if some confidential information may be found within the broader designation. As several district courts have explained, a party misuses a protective order when it over-designates discovery materials in that way." Edwards Vacuum, 2021 WL 186932, at *2.
3. "Third," the parties' stipulation for a protective order was written by the lawyers and not by the judge. A stipulated protective order is not dispositive of the outcome even when a stipulation written by the lawyers is accepted by the Court for an order. In other words, "the fact that the parties may have stipulated to a protective order is not itself a basis for sealing or otherwise restricting access to any specific discovery material." Edwards Vacuum, 2021 WL 186932, at *2.
4. "Finally," said the Court, numerous decisions have established that "'mere embarrassment'" is not enough. Good cause for a protective order requires much more. If embarrassment is involved, then the embarrassment must "'be particularly serious or substantial'" in order to demonstrate good cause for a judge to enter a protective order. Edwards Vacuum, 2021 WL 186932, at *2.
The District Judge in this case applied these four legal principles to the deposition testimony which had been designated "Confidential" or "Highly Confidential" by one set of attorneys in the case. The judge took unusual pains to review and report his rulings on what must have been several hundreds of pages of testimony from four witnesses. See Edwards Vacuum, 2021 WL 186932, at *4-6.
The extraordinary effort by the District Judge in this case is worthy of attention and, more than that, worthy of high praise. But the lesson of this case is not in the decision itself, as was said earlier.
The lesson of this case is in the Court's summary of four mandates, four "legal principles," required by the case law of any stipulated protective order submitted by the lawyers in any case.
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