Often, in litigation, we find our clients in a position where they have been asked to produce sensitive or confidential documents and information to the opposition during the discovery process. One of the benefits of our justice system is that it allows a party to access information from the opponent that may assist in the prosecution or defense of that party’s claim. On the other hand, the documents and information requested may be of such a sensitive and confidential nature that exposure in the public domain could harm your company’s bottom line. One way to protect that confidential or sensitive information is by use of a protective order. A protective order is an order entered in a lawsuit requiring the litigants to take certain steps to keep the information being sought to be protected from being made public. In addition, protective orders can be sought against litigants who are attempting to use the discovery process to harass others through the issuance of unnecessarily burdensome and extensive discovery. Both Wisconsin and Illinois permit courts to issue protective orders where litigants would otherwise face unreasonable annoyance, embarrassment, oppression, or undue burden or expense.
In Illinois, the issuance of protective orders is governed by Illinois Supreme Court Rule 201(c), which provides that the Court may, on its own initiative, or on motion of any party or witness, enter a protective order “as justice requires.”[i] The protective order may deny, limit, condition, or regulating discovery to prevent unreasonable annoyance, expense, embarrassment, disadvantage or oppression[ii]. Courts in Illinois have determined that there are no specific requirements for entry of protective orders in Illinois as long as the broad ‘as justice requires’ standard is met.[iii]
However, the lack of a specific requirement does not mean that a party seeking a protective order is entitled to a protective order without demonstrating in some fashion that one is warranted.[iv] Instead, Illinois courts have primarily allowed the entry of protective orders in cases where confidential information is sought to be discovered[v], where there is a lack of due diligence in taking discovery of witnesses[vi], or where there is the potential for the release of sensitive discoverable materials to third parties[vii]. Thus, where a shopping center landlord’s confidential share agreements with other tenants were requested by the defendant tenant for purposes of dissemination in order to investigate the possibility of a class action, a protective order was appropriate[viii].
In addition, though not a protective order per se, the Illinois Banking Act protects banks from being required to turn over customer financial information to opponents in litigation without further court order[ix]. Under the Illinois Banking Act, a bank may not disclose a customer’s financial records or information to an opponent unless the customer has authorized the disclosure or the financial records are being sought by subpoena, court order or the like[x]. Of course, the purpose of this provision is to protect a customer’s confidentiality, but it necessarily requires banks to keep mum regarding customer financial information unless ordered otherwise by a court. Banks can use this to their advantage in litigation, requiring opponents to take that extra step before the tribunal in order to obtain sensitive customer information.
In Wisconsin, the issuance of protective orders is governed by Wis. Stat. 804.01 (3)(a), which allows a court to enter a protective order upon motion by a party or by the person from whom discovery is sought[xi]. But, like in Illinois, litigants in Wisconsin do not get a “blank check” with regard to protective orders. Good cause must be shown, and the purpose of the protective order must be to protect a party or person from, among other things, annoyance, embarrassment, oppression, or undue burden or expense[xii].
The presumption is that the entry of a protective order is not necessary; the movant must show a positive reason (i.e. “good cause”) for the entry of an order. The burden of establishing “good cause” is upon the party seeking the protective order[xiii]. What is “good cause”? It is difficult to tell. According to one Wisconsin court, the fact that one plaintiff in a products liability suit might pass information provided by the defendant to other plaintiffs involved in litigation against the defendant did not rise to the level of “good cause” that would require plaintiffs, their counsel and their expert witnesses to keep any information discovered confidential.[xiv] Therefore, the court declined to enter the protective order the defendant requested.[xv] However, there was good cause for a protective order when a litigant, claiming damage in the amount of $2,200, propounded interrogatories that would require his opponent to incur between $5,000 and $10,000 in legal fees to answer the same.[xvi] The burden in answering the interrogatories was deemed “prohibitive” by the court, and a protective order was allowed.[xvii]
Though Wisconsin and Illinois both provide for a litigant to obtain a protective order at the court’s discretion “as justice requires” (in Illinois) or for “good cause shown” (in Wisconsin), experience shows that judges are much more likely to entertain the idea of a protective order in cases where the parties themselves have agreed to the terms of a proposed protective order. That is not to say a judge will not deny the movants’ request for a protective order outright, or modify the terms of the proposed order. But to the extent the parties can take off their adversarial hats for a moment and work to agree to terms that will benefit both parties, there is a greater chance that a protective order will be entered.
This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.