Legal Memorandum: Essentials for a Confidentiality Order

Issue: Under the Federal Rules, when may a party to request a confidentiality order prior to responding to discovery requests for business documents?

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).

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