Issue: Under the Federal Rules, when may a party to request a confidentiality order prior to responding to discovery requests for business documents?
|Area of Law:||Litigation & Procedure|
|Keywords:||Confidentiality order; Trade secret or confidential business information; Protective order|
|Cited Statutes:||Local Rule 26.1(h)(3); L.R. 26.1(g)(3)(A); Fla. Stat. § 688.002(4)|
The party requesting a confidentiality order bears the burden to show it is necessary. Estridge v. Target Corp., No. 11-61490-CIV, at *6 (S.D. Fla. Feb. 16, 2012). In brief, to qualify for a confidentiality order, a party must make a showing of “good cause,” that is, it must show that the information it seeks to protect is, in fact, a trade secret or confidential business information. To do so, the party must (1) actually establish—not simply allege—that the information has independent economic value as a consequence of not being generally known or ascertainable, and (2) Ferguson must actually demonstrate—with evidence—that it has taken reasonable steps to keep the information secret. See Fla. Stat. § 688.002(4).
In addition, to be entitled to a protective order with regard to requests for production, the party seeking protection must comply with Local Rule 26.1(h)(3) that requires, inter alia, a privilege log identifying each document against which it seeks protection, a statement of the type of protection the party requests and the reasons supporting protection. Failure to comply results in waiver of the objection. L.R. 26.1(g)(3)(A).