Your Stipulated Protective Order May Not Provide As Much Protection As You Expect
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In a growing number of courts, a negotiated protective order entered for discovery purposes will not protect litigants’ confidential information from public disclosure.
Stipulated protective orders are commonly used tools in complex litigation. These orders allow parties to designate material produced in discovery as confidential. But certain courts, most recently the Court of Appeals for the Sixth Circuit, have found that protective orders cannot be used as the sole basis to file that material under seal. In those courts, failure to properly support a motion to seal documents and information can lead to wholesale reversal of the sealing orders, and in one case, resulted in the revocation of the court’s approval of a class action settlement. Understanding the substantive and procedural sealing requirements in your court and strictly following the rules are critical to protecting confidential information.
Failure to Comply with Sealing Requirements Can Have Additional Detrimental Effects in Class Actions
This line of cases makes abundantly clear that in the Sixth Circuit, parties should no longer rely only on their protective orders to justify the sealing of confidential information. But the stakes are even higher for class actions. As the court explained in Shane Group, the sealing standard must be applied “with particular strictness” in class actions because members of the public can be putative members of the asserted classes in the case.24 These class members have an even greater interest in full access to the relevant case documents.25 Thus in Shane Group, the court not only unsealed the court filings, but also overturned approval of the parties’ settlement, finding that the sealing prevented absent class members from having enough information to determine whether the settlement was fair, reasonable and adequate. 26 This case demonstrates that class action litigants in the Sixth Circuit that wish to maintain the confidentiality of their information, as well as potentially the efficacy of their settlement agreements, should take the time to narrowly tailor and justify their requests to file materials under seal.
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