United States District Court, E.D. Pennsylvania
TIMOTHY J. SAVAGE J.
parties originally filed a [Proposed] Stipulated Protective
Order on March 20, 2019. The motion was not approved. The
parties then submitted an amended [Proposed] Stipulated
Protective Order. In it, they explain that they understand
that it does not “confer blanket protections on all
disclosures and use extends only to the limited information
or items that are entitled to confidential treatment under
the applicable legal principles.” However, the
proposed order does just that. Protected material is defined
in the proposed order as “any Disclosure or Discovery
Material that is designated as ‘Confidential',
‘Highly Confidential - Attorneys' Eyes Only',
or ‘Highly Confidential - Attorney's Eyes Only -
Source Code'.” Those terms are defined generally,
allowing the parties to declare any document confidential.
The parties describe protected items as those that
“would create a substantial risk of harm that could not
be avoided by less restrictive means.”
essence, the parties leave it to themselves to declare what
is confidential. They further limit the right to challenge a
confidentiality designation to the parties.
26(c) permits a court to enter a protective order to shield a
party “from annoyance, embarrassment, oppression, or
undue burden or expense.” Fed.R.Civ.P. 26(c)(1). The
party seeking a protective order has the burden of justifying
the confidentiality of each and every document sought to be
sealed. It must demonstrate “good cause.” That
means the proponent must show, on a document-by-document
basis, that “disclosure will work a clearly defined and
serious injury to the party seeking closure. The injury must
be shown with specificity.” Pansy v. Borough of
Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1997).
“Broad allegations of harm, unsubstantiated by specific
examples or articulated reasoning, do not support a good
cause showing.” Id.
determining whether good cause exists justifying a protective
order, a court considers what have become known as the
Pansy factors. They are:
1. whether disclosure will violate any privacy interests;
2. whether the information is being sought for a legitimate
purpose or for an improper purpose;
3. whether disclosure of the information will cause a party
4. whether confidentiality is being sought over information
important to public health and safety;
5. whether the sharing of information among litigants will
promote fairness and efficiency;
6. whether a party benefitting from the order of
confidentiality is a public entity or official; and,
7. whether the case involves issues important to the public.
Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d
Cir. 1995) (citing Pansy, 23 F.3d at 787 - 91).
These factors are not exhaustive.
parties' proposed protective order does not meet the
requirements necessary to justify judicial endorsement of
non-disclosure. It does not demonstrate the requisite good
cause and it lacks specificity. It makes only bare
allegations of harm. The parties make no attempt to address
the Pansy factors. The proposed order leaves to the
parties to determine the confidentiality of unspecified
documents without any showing of specific injury that would
result from disclosure. It would allow the parties to
exercise unilateral control over what may be kept ...