Many times, the defense will condition its production of key documents on your agreement to be bound by the defense’s “Confidentiality Order” or “Protective Order” at the outset of discovery. These “Confidentiality Orders” are often designed to give the defense one-sided control over discovery. They also make discovery much more time-consuming, difficult and expensive than it should be for plaintiffs. You should never agree to these defense orders. You should always force the defense to carry their burden to show “good cause” why the court should grant such an exceptional remedy.
The Five-Part Series
In the first part of this five-part series, we are going to discuss the lofty burden placed on a party seeking to keep documents and materials “confidential” during discovery. The second part will discuss how to overcome objections based upon claims of “trade secret” or “proprietary information.” In the third part, we are going to consider some of the terms that the defense frequently proposes in order to gain an unfair strategic advantage and how to expose them. For the fourth part, we will discuss Georgia’s public access laws and their juxtaposition to “Confidentiality Orders” in civil litigation. In the fifth and final part, we will propose and discuss some terms that you can suggest to the court as alternatives to the defense’s proposed “Confidentiality Order”.
Part One: Making the Defense Meet Its Burden
The burden for obtaining a protective order is on the moving party (the defense). They must put forth factual evidence to establish “good cause”. Young v. Jones, 149 Ga. App. 819 824 (1979). The standard for obtaining such a protective order is found in O.C.G.A. §9-11-26(c)(7), which provides:
Upon motion by a party or by the person from whom discovery is sought and for good cause shown, the court in which the action is pending… may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
(7) That a trade secret or other confidential research, development or commercial information not be disclosed or be disclosed only in a designated way[.]
When and if good cause is shown, the court would then have to exercise its discretion to determine whether a protective order is actually necessary and, if so, determine the terms of the order. Alexander Props. Group v. Doe, 280 Ga. 306, 626 S.E.2d 497 (2006).
Georgia law thus places the burden on the party seeking the protective order or “confidentiality order” (the defense) to demonstrate good cause why it should be given. The defense’s proposed “Confidentiality Orders” almost always attempt to unfairly shift this burden to the plaintiff through terms stating that the defense attorneys—in their sole discretion and judgment—can stamp or otherwise designate documents or materials as “confidential” and then force the plaintiff to file motions and seek the court’s rulings that the defense’s designations are improper.
Why voluntarily agree to shift that burden to the plaintiff when the law places it on the defense? Not only does the law place the burden for showing “good cause” on the defense, but the law also stringently defines the manner in which “good cause” must be shown: only through facts and evidence (i.e. signed and sworn statements, testimony or affidavits) and not through the opinions and conclusory statements of defense counsel.
Good cause “necessarily is not established by stereotyped or conclusional statements, bereft of facts.” Alexander Props. Group v. Doe, 280 Ga. 306, 626 S.E.2d 497 (2006). In demonstrating good cause, the movant must “make a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements supporting the need for a protective order. Estate of Manship v. U.S., 240 F.R.D. 700 (N.D. Ga. 2006). “Broad allegations of harm, unsubstantiated by specific examples do not support a showing for good cause” Id. (internal citations omitted). The requirement that the movant demonstrate “good cause” only through sufficient facts and evidence is of the utmost importance; so much so that granting a Protective Order in the absence of such facts and evidence has been found to be an abuse of discretion. Bridges v. 20th Century Travel, 149 Ga.App. 837 (1979).
To meet its burden to show “good cause” under Georgia law, the defense should also be required to provide substantial evidence that bad faith or harassment motivates the Plaintiff’s action prior to the entry of any protective order. Parks v. Multimedia Technologies, Inc., 239 Ga. App. 282, 295, 520 S.E.2d 517, 529 (1999); Osborne v. Bank of Delight, 173 Ga. App. 322 (1985). As the Court of Appeals has recognized:
It is contemplated that the trial judge will exercise a sound and legal discretion in the grant or denial of protective orders. Such are intended to be protective—not prohibitive—and, until such time as the court is satisfied by substantial evidence that bad faith or harassment motivate the [discoverer’s] action, the court should not intervene to limit the scope of pretrial discovery.
As you can see, confidentiality and protective orders are exceptional remedies. The law accordingly not only places a high burden on the defense to justify such orders, but also requires specific sworn statements of fact in order to substantiate the request. Unsurprisingly, the vast majority of materials the defense seeks to protect will not meet this standard. This is why it is so important to fight the entry of these defense orders from the outset.