Friday, July 09, 2010

Stipulated Protective Order (Litigation Checklist)

This stipulated protective order checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.  Frequently parties will find it in their mutual best interest to agree to a protective order at the outset of discovery in order to protect sensitive information, to expedite disclosure, and to clarify the rules that will govern sensitive information.  This checklist addresses just such a situation where parties are able to stipulate to a protective order, and is not intended to address the situation where a party seeks a protective order in response to discovery or a subpoena.
- State the the parties stipulate (or that other party does not oppose), pursuant to either C.R.C.P. 26(c) or F.R.C.P. 26(c), entry of the following protective order.
- Provide a brief introduction and statement of scope of protective order (see Form, below, for sample language)
- Define the designation of certain material as "Confidential."  See the form, below, for sample langugae.
- Where appropriate/necessary, create a second (or more) tier of confidential information as above, such as "Attorneys' Eyes Only."
- Define general agreement and specific limitations to access of each tier of designated material (see Form).
- Provide rules governing designation of deposition testimony (see Form)
- State that the protections established under this protective order extend to related material (see Form)
- State that any party wishing to disclose, or attach any designated discovery material as part of any pleading shall move to have the material filed under seal.
- State that designated material may still be used at a hearing or at trial (see Form)
- Provide a mechanism for challenging the designation of discovery material (see Form)
- Include non-waiver and inadvertent disclosure rules (see Form)
- State that, regardless of designation, materials in the public domain shall not be deemed protected by this order.
- Provide for the return of discovery material at the conclusion of the action (see Form)
- Address manner and addressees for notice of designation.
- Provide acknowledgement form to be signed by parties receiving designated materials (see Form)
Thoughts & Best Practices:
- While this is a commonly used format, the form and procedures in a protective order should be customized to the particular case and circumstances.  For example, only one tier of confidentiality may be appropriate in some cases, whereas others may require three or more tiers as well as parallel procedures for dealing with separate groups at the same level of confidentiality.
- Consider whether statue provides additional confidentiality requirements, such as HIPAA rules governing disclosure of "Individually Identifiable Health Information" as governed by 45 C.R.F. Section 164.512(e).
- Consider adding a "clawback" provision, especially in cases with extensive production of electronically stored information, that allows either party to retract inadvertent production of privileged information.
Example Form:
- Click Here for Template (Locked Version)
- Click Here for Publicly Editable Version (Please feel free to make improvements to this form, and comment below noting what changes were made)
Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit for more information.
This stipulated protective order checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.


David Hobbie said...


As a fellow litigation knowledge management person I've been enjoying seeing your approach (and admiring the way you lay all this out in the open as well).

One procedural thought--I think it might be easier to read (at least for someone familiar with protective orders) if you laid out the substantive categories of checklist items without going into what sample language might look like for each at the same time. Either a "more" link associated with each item or an actual sample protective order could be used to show sample language.

I also have one substantive thought--an important aspect of many modern protective orders is the so-called "clawback" provisions, which allows parties to negotiate the circumstances in which inadvertently produced documents (protected by attorney-client privilege or work product doctrine) are returned. Documents could be required to be returned automatically and always, or a "notice period" could be established, or some other way.


Jeff Vail said...

Hi David,

Thanks for your feedback. My longer-term plan has been to include a sample/form with each checklist, but in light of the readability issues you raise, I think I should get on this sooner rather than later so that these checklists and lists of best practices can reference the language in the form as you suggest. My plan, for now, is to upload forms to google docs and open permissions to all to read the form, and then also include a jointly editable form for all to add edits/comments, etc. Hopefully that will work smoothly--I'll try to get a post up this week launching this process and explaining the plan.

Thanks as well for the substantive feedback--I'll ensure that the sample form includes a clawback provision. This is exactly the kind of feedback that I hope to get more of. I'm certainly not there yet, but the potential for an open-source set of forms/checklists/best practices that is actively edited by hundreds or even thousands of attorneys could be truly amazing. I've had some success with this in my list of affirmative defenses, which I think is the most thorough such list avaialble thanks to input from several attorneys...