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PROTECTIVE ORDER

In litigation, an order that prevents the disclosure of sensitive information except to certain individuals under certain conditions. In a domestic dispute, an order that prevents one party from approaching another, often within a specified distance.

Any order issued by a court which is meant to protect a person from harm or harassment.

A protective order is commonly used to protect a party or witness from unreasonable or invasive discovery requests (for example, harassing questions in a deposition, or an unnecessary medical examination). Less often, a temporary restraining order issued to prohibit domestic violence is referred to as a protective order.

The state has two substantial interests in regulating pre-trial discovery: one is to facilitate the search for truth and promote justice (Hickman v. Taylor (1947) 329 U.S. 495, 507); the other is to protect the legitimate privacy interests of the litigants and third parties. (Seattle Times Co. v. Rhinehart (1984) 467 U.S. 20, 34-35) The interest in truth and justice is promoted by allowing liberal discovery of information in the possession of the opposing party. (Id. at p. 34.) The interest in privacy is promoted by restricting the procurement or dissemination of information from the opposing party upon a showing of "good cause" (F.R.C.P. rule 26, subd. (c); Code Civ. Proc., section 2031, subd. (e).) (See generally Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 377.) "The trial court is in the best position to weigh fairly the competing needs and interests of parties affected by discovery." (Seattle Times Co. v. Rhinehart, supra, 467 U.S. at p. 36.)

Secrecy agreements and protective orders impair the public's access to discovery records as well as the parties' First Amendment right to disseminate information to the public. (Seattle Times Co. v. Rhinehart, supra, 467 U.S. 20 at pp. 31-32.) Because the judicial process is frequently the avenue by which the public and regulatory agencies learn of significant health and safety hazards, blocking this avenue may prove detrimental to the public well-being. For this reason, courts frequently consider the public interest when determining whether good cause exists for a protective order. (See, e.g., Brown & Williamson Tobacco Corp. v. F.T.C. (6th Cir. 1983) 710 F.2d 1165, 1180 [unsealing documents because information relevant to public health]; and see discussion in Timmons, Protective Orders in Products Liability Litigation: Striking the Proper Balance (1991) 48 Wash. & Lee L. Rev. 1503, 1528.)

A manufacturer has a legitimate interest in protecting its trade secrets and other confidential proprietary information. The relevancy and reliability of information obtained during discovery has not been subjected to judicial scrutiny and might never be disclosed at trial. Clearly, the release of inaccurate, unreliable or misleading information could unfairly damage the manufacturer's reputation and alarm the public unnecessarily. (Seattle Times Co. v. Rhinehart, supra, 467 U.S. at p. 35.)

In Seattle Times Co. v. Rhinehart, supra, the Court addressed the issue of whether a protective order restricting a party from disseminating information it obtained during discovery violated that party's First Amendment Rights. After recognizing and discussing the interests of the restricted party and the public in disseminating the information and the interest of the party which produced the information in keeping it confidential, the Court held "where, as in this case, a protective order is entered on a showing of good cause . . . , is limited to the context of pretrial civil discovery, and does not restrict the dissemination of the information if gained from other sources, it does not offend the First Amendment." (467 U.S. at p. 37.)

"Presumably, due to its temporary nature, [and] its infringement upon the public right to know, . . . a sealing or confidentiality order in a civil case is always subject to continued review and modification, if not termination, upon changed circumstances." (Mary R. v. B & R. Corp. (1983) 149 Cal.App.3d 308, 317.) See also American Tel. & Tel. Co. v. Grady (7th Cir. 1979) 594 F.2d 594, 597 ["exceptional considerations warranting the alteration of an agreed protective order exist in the present case."]

California imposes no confidentiality requirements with respect to information obtained through discovery except upon motion for good cause shown. (See, e.g., Code Civ. Proc., section 2031, subd. (e).) Thus, in the absence of an order obtained on a showing of good cause, nothing in California law would prohibit a party sharing documents obtained through discovery with a nonparty.

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