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A New Approach to Protective Orders in State Civil Courts

Wed, 02/22/2017 - 11:22 -- admin25

by Hon. Craig Smith and Hon. Dale Tillery

Why do you need a 20-page Protective Order in your case? Are the nuclear launch codes involved? Or, are you attempting to protect the Coca-Cola formula or the Colonel’s recipe? If you litigate business disputes, products liability cases, employment contracts or any other variety of commercial litigation, it is likely that you have proposed an overly broadand burdensome protective order. Abandon the shotgun approach to drafting protective orders in exchange for a rifle scope approach.

Dallas courts regularly face the challenge of balancing the litigant’s right to protect confidential information with the public’s right to open courts and transparency. In our tenures, we’ve seen how parties in civil litigation frequently seek and easily obtain protective orders that hide and effectively seal discovery material. Too often, parties in dispute willingly enter overly broad agreed protective orders, often based on different motivations. We know from experience that judges confronted with these “agreed” orders approve them without consideration of whether the request is unnecessarily broad, or violative of Rule 76a.

It is not hard to see how we have reached this position. Every day, we generate an unprecedented amount of electronic information. There’s enormous anxiety around protecting potentially sensitive client information. On the other side, lawyers seeking discovery are mainly interested in “getting their discovery” and avoiding roadblocks. In most cases, any thought about whether the information provided affects the public’s interest is nonexistent or secondary, at best.

We should not forget that transparency is a foundation upon which Texas civil jurisprudence rests.  Rule 76a was created to ensure that “court records… are presumed to be open to the general public and may be sealed only upon a showing of...a specific, serious and substantial interest which clearly outweighs...(1) this presumption of openness; (2) any probable adverse effect that sealing will have upon the general public health or safety,... [and] no less restrictive means than sealing records will adequately and effectively protect the specific interest asserted.” It is important to note, and a surprise to many trial lawyers, that “court records” may include records that have not been filed.  Although Rule 76a was passed with the best of intentions, it has been weakened by overly broad protective orders that effectively minimize transparency.

 Open courts play a valuale role in our society. For example, during the presidential campaign, voters had access to sworn deposition testimony that shed light on Hillary’s emails as well as Donald’s Trump University issues. From faulty tire treads to defective ignition switches, details about dangerous defects have come to light only after records have been unsealed. Indeed, sexual assaults might have been prevented had entertainer Bill Cosby not been able to settle and seal his court files.

 In our two Dallas Civil District courts, we are working to preserve transparency as well as make the discovery process more efficient by implementing a standardized protective order. Twenty-plus page proposed protective orders often resemble arbitration agreements given their gratuitous complexity. The standardized motion for protective order is straight- forward. The purpose is to:

  • identify what is confidential and memorialize procedures for identifying and protecting files;
  • define how confidential material may be used in the litigation;
  • make clear that the order is meant to promote efficient document production, and that any long-term sealing is subject to a Rule 76a public hearing;
  • address the public’s interest in transparency as to court records affecting health and safety; an
  • identify permitted disclosures of any protected material.

We—judges and lawyers alike—are charged with adhering to Rule 76a and be mindful of  transparency when confronted with information that really should not be hidden. All of us must remain aware of the consequences of overly broad protective orders. Please visit the Dallas County website to view a copy of the standardized protective order.

Judge Craig Smith presides over the 192nd District Court in Dallas County. Judge Dale Tillery presides over the 134th District Court in Dallas County.

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