Legal Memorandum: Protective Orders

Issue: When is a protective order issued under the Federal Rules of Civil Procedure?

Federal Rules contemplate the protective order as a valid and useful method of balancing the requesting party’s right to liberal discovery to make his or her case with the opposing party’s responsibility to produce only what is reasonable.  See Fed. R. Civ. P. 26(c); 6 Moore‘s Federal Practice, supra, at § 26.104; Lyoch v. Anheuser-Busch Cos., 164 F.R.D. 62, 66-70 (E.D. Mo. 1995) (to the extent the information sought was private, the parties were instructed to fashion a mutually agreeable protective order).  But cf. Continental Illinois Nat’/Bank & Trust Co. v. Caton, 136 F.R.D. 682, 685 (D. Kan. 1991) (“[w]here the requested material is relevant and necessary to the discovery of evidence, a protective order should not be entered merely because compliance with a request for production would be costly or time consuming.”).  The Advisory Committee’s Notes to Rule 26(c) authorize the court to issue a protective order, however, only upon a showing of good cause by the party seeking to protect the documents or communications.

[…]