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
Confidentiality order; Trade secret or confidential business information; Protective order
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).
Subscribe to Litigation Pathfinder
To get the full-text of this Legal Memorandum ... and more!
(Month-to-month and annual subscriptions available)