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.
- 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 www.vail-law.com 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.