the model protective order - · pdf filebefore delving into the “model protective...

THE MODEL PROTECTIVE ORDER

DAVID DREZ MEREDITH PERRY

Wick Phillips, LLP 100 Throckmorton, Suite 500

Fort Worth, Texas 76102 (817) 332-7788

[email protected] [email protected]

State Bar of Texas 37TH ANNUAL

ADVANCED CIVIL TRIAL COURSE San Antonio – July 16-18, 2014

Dallas – August 20-22, 2014 Houston – October 29-October 31, 2014

CHAPTER 28

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mailto:[email protected]

Law with Purpose.

Mr. Drez is a trial lawyer and partner based in Wick Phillips’ Fort Worth office. He specializes in complex business disputes and has represented clients in a variety of industries, including oil and gas, electric utility, real estate, banking and finance, and construction. With more than ten years of experience, Mr. Drez is a highly regarded expert in all phases of litigation at the trial and appellate levels, representing both plaintiffs and defendants.

Before moving to Wick Phillips, Mr. Drez was a partner with Haynes and Boone, LLP in Fort Worth, and he served as a judicial clerk for The Honorable James T. Trimble, Jr., United States District Court for the Western District of Louisiana before entering private practice. Licensed to practice in Texas, New York and Louisiana, he is admitted in the U.S. Supreme Court, U.S. Court of Appeals for the Fifth Circuit, all U.S. district courts in Texas and the Western District of Louisiana. Mr Drez's recent experience include:

AWARDS & DISTINCTIONS

Texas Super Lawyer, Texas Monthly (2013)

Texas Super Lawyers Rising Star, Texas Monthly and Law & Politics Magazine (2004-2013)

David J. Drez IIIPartner – Complex Business Dispute Litigation

100 Throckmorton StreetSuite 500Fort Worth, Texas 76102

817.710.1014 Direct817.332.7789 Facsimile

[email protected]

V-CARD

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PRACTICE AREAS

Complex Commercial Litigation / Trial Practice

Business Litigation

Energy Litigation

Real Estate and Construction Litigation

Banking and Financial Services Litigation

Bankruptcy-Related Litigation

EDUCATION

Tulane University (B.A., 1995)

Southern Methodist University, cum laude(J.D., 1998)

Law with Purpose.

Privacy Disclaimers Sitemap © 2014 Wick Phillips. Dallas, Texas. All rights reserved.

3131 Mckinney Ave Suite 100 Dallas, Texas 75204

(214) 692-6200

100 Throckmorton Street, Suite 500 Fort Worth, Texas 76102

(817) 332-7788

7004 Bee Caves Rd. Bld 1, Suite 110 Austin, TX 78746 (512) 681-3732

Recognized as one of Fort Worth’s “Forty-Under-Forty” by the Fort Worth Business Press (2006)

Leadership Fort Worth (2004)

Senior Articles Editor, SMU International Law Review Association

RECENT REPRESENTATIVE EXPERIENCE

Lead trial counsel representing royalty owners in 2012 suit against Chesapeake Energy Corporation regarding improper calculation and payment of royalties underan oil and gas lease. Obtained judgment for damages and attorney’s fees for more than $1 million; caseis currently on appeal.

Lead trial counsel in bankruptcy trial in the U.S. Bankruptcy Court, District of Delaware, successfully defeated $8 million claim against the Debtor’s estate related to its facility that manufactured fire and emergency vehicles. American LaFrance, LLC v. RT Jedburg Commerce Park, LLC, No. 08-10178 (BLS), Adversary No. 10-51245, United States Bankruptcy Court, D. Del., aff’d Civ. No. 11-1273-RGA (U.S. District Court, D. Del. (2012))

Lead trial counsel in federal fraud trial concerning the sale of fiber optic products. Obtained jury verdict of approximately $12.5 million. Kevin M. Ehringer Enterprises, Inc. v. McData Services Corporation, No.3:06-CV-812-L, U.S. District Court, Northern District of Texas; rev’d at 646 F.3d 321 (2011)

Lead defense counsel representing oil and gas company in multiple suits arising out of wildfires that occurred in the Texas Panhandle in 2006. More than twelve separate cases were filed in six different counties with over 100 separate plaintiffs. In re Cano Petroleum Wildfire Litigation, No. 07-0593 (Tex. MDL 2008).

Law with Purpose.

Privacy Disclaimers Sitemap © 2014 Wick Phillips. Dallas, Texas. All rights reserved.

Meredith Lewis Perry is an associate in the Wick Phillips Litigation Group. Her practice focuses on commercial business litigation and on providing counsel to clients involved in a wide variety of civil disputes.

During law school, Ms. Perry produced a weekly update of the Texas Register’s health law-related state regulatory activity for the Health Law Section of the State Bar of Texas. In addition, she participated in the SMU Legal Clinic where she represented clients in a variety of civil matters.

Currently, Ms. Perry’s community involvement includes charitable work with TAASA (Texas Association Against Sexual Assault) and on the Vanderbilt University Fundraising Committee.

AWARDS & PUBLICATIONS

State Bar of Texas – Health Law Section Regulatory Activity (2008-2011)

SMU Legal Clinic (2011)

Meredith Lewis PerryAssociate

3131 Mckinney Ave Suite 100Dallas, Texas 75204

214.740.4037 Direct214.692.6255 Facsimile

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PRACTICE AREAS

Commercial Business Litigation

Civil Disputes

Labor & Employment Litigation

EDUCATION

Vanderbilt University (B.A., 2006)

Southern Methodist University - Dedman School of Law (J.D., 2011)

Law with Purpose.

3131 Mckinney Ave Suite 100 Dallas, Texas 75204

(214) 692-6200

100 Throckmorton Street, Suite 500 Fort Worth, Texas 76102

(817) 332-7788

7004 Bee Caves Rd. Bld 1, Suite 110 Austin, TX 78746 (512) 681-3732

The Model Protective Order Chapter 28

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TABLE OF CONTENTS

I. TEXAS RULE OF CIVIL PROCEDURE 192.6. .............................................................................................. 1

II. THE TENSION BETWEEN PROTECTIVE ORDERS AND RULE 76A (AND INFORMATION ON PROPOSED RULE 76B). .................................................................................................................................. 2

III. “ATTORNEY’S EYES ONLY” PROVISIONS. ............................................................................................. 4

IV. THE UNIFORM TRADE SECRETS ACT. ...................................................................................................... 4

V. RULE 21C AND “SENSITIVE DATA.” .......................................................................................................... 5

VI. PROTECTIVE ORDERS AND FILING DOCUMENTS UNDER SEAL IN TEXAS FEDERAL COURTS. ........................................................................................................................................................... 5

VII. BASIC FEATURES OF A PROTECTIVE ORDER. ........................................................................................ 6

VIII. CONCLUSION. ................................................................................................................................................. 7

APPENDIX A ................................................................................................................................................................. 9

APPENDIX B ............................................................................................................................................................... 21

Protective orders are a common facet of civil litigation matters, particularly in commercial disputes where the parties have heightened competing confidentiality and non-disclosure interests. Without the safeguards afforded by a protective order, a party’s sensitive or confidential information may be used against it by the opposing party, or fall into the public domain to the party’s ultimate disadvantage. Protective orders play a vital role in arming parties with the confidence necessary to openly engage in the discovery process. Taken to the extreme, a protective order may allow for the classification of certain documents as “attorney’s eyes only” or “for counsel’s eyes only,” and further require that certain documents be filed under seal. The applicable rules and practices governing protective orders in the State of Texas are too often overlooked in favor of the common practice of simply modifying the latest protective order in one’s file to reflect the styling and parties of the current case. While convenient, this approach has its pitfalls—namely the potential for overlooking certain rules and implementing outdated practices. Failure to comply with such rules exposes parties to the risk of sensitive or confidential information eventually being disclosed. The purpose of this paper is to outline best practices for protective orders in light of the current and applicable law and statutes, culminating in a proposed “Model Protective Order” (found at Appendix A) that could ideally be used and tailored for practically any commercial litigation matter in Texas state courts. Recognizing that one size does not necessarily fit all, options are presented on certain specific provisions that can be adjusted to fit the case in question. Before delving into the “Model Protective Order,” this paper discusses the genesis of protective orders, as well as a few of the most common “traps” that exist when preparing a protective order, chiefly the often misconstrued requirements for filing documents “under seal.” Next, the recently proposed Texas Rule of Civil Procedure 76b is discussed, along with the interplay between protective orders and the Texas Uniform Trade Secrets Act, and a brief overview of protective orders and the requirements of filing documents under seal in Texas federal courts. Before concluding with a “Model Protective Order,” this

paper provides an outline of general considerations to be made when preparing a protective order. I. Texas Rule of Civil Procedure 192.6. The only rule concerning protective orders in Texas Civil Practice is Texas Rule of Civil Procedure 192.6(a), which provides that “[a] person from who discovery is sought, and any other person affected by the discovery request, may move…for an order protecting that person from the discovery sought.” Rule 192.6(b) directs that the court may enter an order “[t]o protect the movant from undue burden, unnecessary expense, harassment, annoyance, or invasion of personal, constitutional, or property rights.” This order may, “among other things,” order that the discovery: (1) not be sought, in whole or in part; (2) be limited by extent or subject matter; (3) not be undertaken at the time or place specified; (4) be undertaken only by the method or terms and conditions or time and place directed by the court; or (5) be sealed or otherwise protected subject to Rule 76a. While the safeguards of Rule 192.6 are available to “any person affected by the discovery request,” those provisions are rarely found to be the impetus for the protective orders discussed herein. Instead, protective orders are typically reached through negotiation and by agreement and focus on the litigants’ competing confidentiality concerns, rather than the broad circumstances covered by Rule 192.6. The Texas Supreme Court has observed:

Agreed protective orders and confidentiality agreements matter; they matter because the parties vest confidence in them; and such confidence vanishes if these important protections are casually disregarded. See Arthur R. Miller, Confidentiality, Protective Orders, and Public Access to the Courts, 105 Harv. L. Rev. 427, 501 (1991) (‘The reality seems obvious: for protective orders to be effective, litigants must be able to rely on them.’). Indeed the phrase ‘protective order’ becomes a misnomer if parties are unable to trust

The Model Protective Order________________________________________________________________________________________________________Chapter 28

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them—or trust the courts that enforce them—thus fueling litigation that is far more contentious and far more expensive.

In re Ford Motor Co, 211 S.W.3d 295, 301 (Tex. 2006). While the breadth of Rule 192.6 provides a great deal of latitude for parties seeking a protective order, it offers little specific guidance in the context of the issues typically at play in commercial litigation matters. II. The tension between protective orders and

Rule 76a (and information on proposed Rule 76b).

The Texas Public Information Act broadly provides that any information collected, assembled, or maintained by or for a governmental entity in connection with the transaction of its official business is open to the public, with certain specific and limited exceptions. Tex. Gov’t Code § 552.001, et. seq. Without defining “judicial records,” the act provides that judicial records are not subject to the Public Information Act and are instead subject to the rules promulgated by the Texas Supreme Court. Tex. Gov’t Code § 552.035(a). Thus, the public’s right of access to court records is not absolute. Rule 12 of the Texas Rules of Judicial Administration provides that judicial records do not include any records that are created, produced or filed in connection with any matter before the court and related to the court’s adjudicative function. The U.S. Supreme Court explained the public’s common law right to access court records in Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978):

It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents. In contrast to the English practice … American decisions generally do not condition enforcement of this right on a proprietary interest in the document or upon a need for it as evidence in a lawsuit. The interest necessary to support the issuance of a

writ compelling access has been found, for example, in the citizen’s desire to keep a watchful eye on the workings of public agencies….

In Texas, Texas Rule of Civil Procedure 76a governs public access to civil court records and presumes that such records are open to the public. Administrative Judicial Regions, Appeal No. 00-001 (eDecision Feb. 4, 2000), http://www.courts.state.tx.us/rules/html/00-001.htm. This presumption of openness and specific procedural framework leads to the most frequent flaw in protective orders: a misunderstanding of the requirements to file documents under seal. With the narrow exception of cases that fall within the recently-enacted Texas Uniform Trade Secrets Act, the only way to truly “seal” documents is to comply with Texas Rule of Civil Procedure 76a. Too often, parties to an agreed protective order simply agree that certain documents must be filed under seal, and that such documents should be submitted to the court in an envelope indicating that the documents are “under seal.” Such an agreement is meaningless in the absence of an appropriate court order under Rule 76a. In other words, it does not matter if the parties agree to file documents under seal, nor does it matter if the court blesses such an agreement by court order. Only by complying with Rule 76a can the parties effectively file documents under seal.1 Rule 76a provides:

Court records may not be removed from court files except as permitted by statute or rule. No court order or opinion issued in the adjudication of a case may be sealed. Other court records, as defined by this rule, are presumed to be open to the general public and may be sealed only upon a showing of all of the following:

1 Note that under Texas Rule of Civil Procedure 21(f)(4)(B)(i), documents filed under seal are exempted from e-filing requirements.


2

http://www.courts.state.tx.us/rules/html/00-001.htm

http://www.courts.state.tx.us/rules/html/00-001.htm

(a) 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;

(b) no less restrictive means than sealing records will adequately and effectively protect the specific interest asserted.

Tex. R. Civ. P. 76a(1). While the full scope of requirements under Rule 76a is beyond the purview of this paper, the basic sealing process is as follows:

• The party seeking the order must file a written motion, which must be open to public inspection and post a public notice at the place where notices for meetings of county governmental bodies are required to be posted. Tex. R. Civ. P. 76a(3).

• The notice must indicate the time, date and place of the hearing, the identity of the movant and the records that the party seeks to have sealed. Id.

• A verified copy of the posted notice must be filed with the court and the Clerk of the Texas Supreme Court. Id.

• No sooner than fourteen days following the posting of the notice, a hearing is conducted – any party may participate and non-parties may intervene as a matter of right. Tex. R. Civ. P. 76a(4).

Rule 76a also provides for temporary sealing orders, which can be issued upon motion and notice, provided that a party can show by affidavit or verified motion “that immediate and irreparable injury will result to a specific interest of the applicant before notice can be posted and a hearing held” as required by the rule. Tex. R. Civ. P. 76a(5). Once issued, the temporary order will set the hearing in accordance with Rule 76a(4), and the movant will be required to immediately comply with the notice provisions set forth in Rule 76a(3).

While Rule 76a covers matters filed with the court, it will not protect court orders or opinions. Nonetheless, if a protective order envisions that certain documents will be filed “under seal,” it must contemplate compliance with Rule 76a. And since it would be nearly impossible for parties to anticipate what will need to be filed under seal at the outset or initial stages of a case, and likewise challenging to properly specify the records to be sealed until they are prepared and ready to file, it is likely that multiple Rule 76a motions will be necessary in a case with voluminous records that are required to be submitted under seal. When parties are able to aggregate or foresee a number of specific pleadings that they know will be filed under seal (as in the case of dispositive motions or pre-trial filings), it may be possible to include a number of filings in one Rule 76a motion. Perhaps recognizing some of the issues presented here, the State Bar of Texas Committee on Court Rules has proposed Rule 76b as an addition to the Texas Rules in 2015, which is attached as Appendix B to this paper.2 Designed to facilitate the exchange of information through a standardized system, the proposed rule not only sets forth procedures for seeking a confidentiality order and challenging designations of confidentiality (even providing a form confidentiality order for the parties’ use), but it also provides that an order issued under Rule 76b may serve as a temporary sealing order under Rule 76a(5) for up to thirty days. Notwithstanding the potential for automatic entry of a temporary sealing order through a Rule 76b motion, parties remain obligated to move for a sealing order under Rule 76a before the expiration of the temporary Rule 76b order if permanent sealing of the records is sought. The form confidentiality order that is included in Rule 76b is comprehensive and straightforward. In the absence of more specific concerns or issues, it serves as an effective model protective/confidentiality order and several of its provisions are included in the attached “Model Protective Order.”

2 A special thanks to State Bar Rules Committee Chair Jody Hughes for sharing the draft of proposed Rule 76b, as well as the committee for its work.


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Regardless of whether Rule 76b is enacted, any party seeking or negotiating a protective order must proactively acknowledge and address the quandary presented by Rule 76a, because simply intending that documents be filed under seal will not pass muster. In the context of a protective order, the burden of complying with Rule 76a can either rest with the party filing “confidential” documents or the party that designated the documents as such. The simplest solution appears to be to incorporate a provision in the protective order requiring that notice be given to the designating or opposing party before such documents are filed, along with an agreement that neither party will oppose a Rule 76a motion. III. “Attorney’s Eyes Only” Provisions.

Anytime a protective order provides that certain documents will be designated as “attorney’s eyes only,” the parties should keep in mind how such a provision impacts the lawyers’ ethical obligations. Rule 1.03 of the Texas Disciplinary Rules of Professional Conduct provides that:

(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

When a protective order in a litigation matter contemplates that certain documents are for “attorney’s eyes only,” how does that affect an attorney’s obligation to communicate with his or her client?

Comment 4 to Rule 1.03 states that “rules or court orders governing litigation may provide that information supplied to a lawyer may not be disclosed to the client. Rule 3.04(d) sets forth the lawyer's obligations with respect to such rules or orders. A lawyer may not, however, withhold information to serve the lawyer's own interest or convenience.” But Rule 3.04(d) is not terribly helpful:

A lawyer shall not: (d) knowingly disobey, or advise the client to disobey, an obligation under the standing rules of or a ruling by a tribunal except for an open refusal based either on an assertion that no valid obligation exists or on the client's willingness to accept any sanctions arising from such disobedience.

Proposed Rule 76b addresses this issue by providing the following in its proposed form confidentiality agreement:

This Order does not bar an attorney, in rendering advice to the attorney’s client with respect to this cause, from conveying in a general way to a client who is not a Qualified Person the attorney’s evaluation of Confidential Information.

In negotiating a protective order that provides for restrictions on information that may be provided to a client, the lawyer must balance the need for confidentiality with his or her professional and ethical obligations. The most practical solution is to select representatives (often in-house counsel or specific business persons) that will have access to information designated at the highest level, such that they will be considered “Qualified Persons” under proposed Rule 76b. Regardless, the proviso contained in proposed Rule 76b maintaining the attorney’s unrestrained ability to render advice based on his or her evaluation is wise language to include in any protective order. IV. The Uniform Trade Secrets Act. Aside from Rule 76a, the only other method available to ensure the effective sealing of court records is by invoking the protections of the Texas Uniform Trade Secrets Act (TUTSA), which became law on September 1, 2013, and are now codified in Chapter 134A of the Texas Civil Practice and Remedies Code. By enacting the law, Texas joined the overwhelming majority of states in adopting a version of the model Uniform Trade Secrets Act. TUTSA codifies Texas law on misappropriation of trade secrets and provides


4

a framework for litigating such disputes. TUTSA also creates a presumption in favor of granting protective orders to preserve the secrecy of trade secrets during litigation. Under these provisions, courts can not only seal documents and limit disclosure of information to just the attorneys and their experts, but courts can also order parties not to disclose alleged trade secrets.

Section 134A.006. Preservation of Secrecy. In an action under this chapter, a court shall preserve the secrecy of an alleged trade secret by reasonable means. There is a presumption in favor of granting protective orders to preserve the secrecy of trade secrets. Protective orders may include provisions limiting access to confidential information to only the attorneys and their experts, holding in camera hearings, sealing the records of the action, and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval.

Importantly for the purposes of protective orders, TUTSA provides that “[t]o the extent that this chapter conflicts with the Texas Rules of Civil Procedure, this chapter controls.” Tex. Civ. Prac. & Rem. Code Section 134A.007(c). Thus, although no reported cases have addressed the issue, parties could seek to seal records covered by Section 134A.006 without the burdens of complying with Rule 76a, assuming the case properly fell under the ambit of TUTSA. While providing the substantive basis for sealing documents, TUTSA offers no guidance from a procedural perspective. Nonetheless, it appears that a motion grounded in the provisions of Section 134A.006 would permit documents to be sealed, and in the context of an agreed protective order, the parties and court could incorporate the statute to avail themselves of its protections. V. Rule 21c and “Sensitive Data.” In December 2013, the Texas Supreme Court adopted Rule 21c entitled “Privacy Protection for Filed Documents,” which merits brief mention here. Rule

21c classifies various personal information as “Sensitive Data,” specifically including information such as social security, driver’s license, passport or other government-issued identifying numbers, certain financial information including bank account and credit card numbers, as well as information regarding minors. The rule requires that such “Sensitive Data” not be included in any documents filed with the court unless required by law or where such documents are filed under seal. “Sensitive Data” is required to be redacted in any filed documents. If a filed document must include the “Sensitive Data,” it must be designated as containing “Sensitive Data.” To the extent any of the information protected by Rule 21c raises concerns warranting a protective order, it may be that the rule provides adequate protection for the parties. VI. Protective orders and filing documents

under seal in Texas federal courts. Detailed specifics regarding federal rules on protective orders and filing documents under seal in federal court are beyond the scope of this paper. Federal Rule of Civil Procedure 26(c) governs motions for protective order. Generally speaking, whether particular documents may be filed under seal in federal court is a matter of the judge’s discretion in the absence of a specific statute or rule, and the federal rules do not have a counterpart to Texas Rule of Civil Procedure 76a.3 The local rules, however, do provide some guidance. Only the Western District of Texas contains a specific local rule regarding motions for protective order (Local Rule CV26), which includes (but does not require) a form Confidentiality and Protective Order. As it pertains to the filing of documents under seal, the Northern District of Texas addresses the issue in LR 79.3 which, in the absence of a statute or rule permitting documents to be filed under seal, requires a motion and the permission of the presiding judge. In the Southern District of Texas, Local Rule 83.6 addresses filing an action under seal, but remains silent as to the sealed filing of specific documents or other pleadings in particular. The

3 An overview of the federal procedure for filing documents under seal can be found at: http://www.fjc.gov/public/pdf.nsf/lookup/sealing_guide.pdf/$file/sealing_guide.pdf.


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http://www.fjc.gov/public/pdf.nsf/lookup/sealing_guide.pdf/$file/sealing_guide.pdf

http://www.fjc.gov/public/pdf.nsf/lookup/sealing_guide.pdf/$file/sealing_guide.pdf

Southern District Rules of Practice for Patent Cases also provide specifics for filing documents under seal. In the Western District of Texas, filing documents under seal is governed by Rule CV-5.2, which requires the filing of a sealing motion requesting the court’s permission. In the Eastern District of Texas, filing of sealed documents is addressed in Local Rule CV-5(a)(7). Of course, one should always consider any judge-specific requirements in addition to the applicable local rules. VII. Basic features of a protective order. The most common tenets of the “model” protective order are as follows:

• Who will be held to the terms of the protective order;

• What is considered “confidential;” • How a party designates information as

“confidential;” • Who may designate information as

“confidential;” • Who has access to information that is

“confidential;” • How “confidential” information is to be filed

with the court; • How the designation of “confidential” may be

challenged; and • How “confidential” information will be

handled upon the conclusion of the litigation. In addressing each of these concepts, a protective order should embrace the following considerations:

1. Who are the parties to the agreement? a. Parties to the litigation – including

their successors, etc. b. Provision for third parties to be

included if information requested 2. How the parties will define what is

“confidential”? a. Examine the legal parameters of what

is considered confidential by law and whether additional statutory or legal protection may be applicable

i. Trade secrets ii. Personal information

iii. Other categories b. Defining what is not confidential

giving particular attention to the context of the case

c. Varying levels of confidentiality i. One category of

“confidential” ii. Additional category of

“highly confidential” or “counsel only”

3. Procedures for marking information as “confidential.”

a. Documents b. Electronic Information c. Deposition Testimony and Transcripts

4. Defining who has access to information designated as “confidential.”

a. Parties b. Counsel c. Designated/qualified representatives d. Experts e. Vendors

5. Provisions for binding third parties. a. Experts b. Designated/qualified representatives c. Determination of whether to include a

form confidentiality agreement 6. The handling of information designated as

“confidential.” a. Generally b. Depositions c. Hearings d. Trial e. Filing

7. Whether certain matters must be filed under seal.

a. Rule 76a procedure b. TUTSA

8. Modification of the protective order. a. By Rule 11 Agreement

9. Inadvertent production. a. Privileged information b. Confidential information (not

labeled/designated as such) 10. Challenging the designation of information as

“confidential.” a. Procedure b. Standard


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11. What to do if a third party requests confidential information.

12. The handling of information designated as “confidential” following the closing of a case.

a. Destruction or retention b. Attorney’s files c. Experts d. Whether the terms of the protective

order extend after the case is closed and adherence to those terms if so

VIII. Conclusion. In negotiating and agreeing to a protective order such as the “Model Protective Order” discussed here, the parties arm themselves with the confidence necessary to openly and willingly engage in the exchange of sensitive and confidential information, effectively streamlining the discovery process even in the most complex litigations matters. As illustrated above however, even the parties’ most sincere intentions to protect such sensitive and confidential information will not absolutely protect against disclosure. The proposed Model Protective Order not only facilitates the identification and handling of certain confidential information, but also ensures that due consideration has been given to the applicable and, in certain instances, newly-enacted legal and statutory requirements. While this paper and the Model Protective Order implement the authors’ collective view of best practices, parties should remain cognizant of the ever-changing considerations relevant to the protection of sensitive and confidential information.


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NO. 2014-0000

ABC COMPANY, § §

IN THE DISTRICT COURT OF

Plaintiff, § §

v. § §

ANY COUNTY, TEXAS

XYZ COMPANY, § §

Defendants. § ANY JUDICIAL DISTRICT

AGREED PROTECTIVE ORDER

Under Texas Rule of Civil Procedure 192.61, the Court enters this Agreed Protective

Order (the “Protective Order”) in the interests of justice and for the purpose of facilitating

discovery in the above-styled action (the “Action”) and assuring the confidentiality of certain

documents, material, or information that may be disclosed in the course of discovery. Unless

modified by the Court, this Protective Order shall remain in effect through the conclusion of this

litigation.

IT IS THEREFORE ORDERED THAT:

A. Parties.

1. Plaintiff(s) and Defendant(s), and their respective attorneys, successors,

executors, personal representatives, administrators, heirs, legal representatives, assigns,

subsidiaries, divisions, employees, agents, independent contractors, or other persons, entities, or

organizations over which they have control, are each a “Party” and collectively referred to as the

“Parties” for the purposes of this Protective Order.

1 In a case falling under the Texas Uniform Trade Secrets Act, also reference § 134A.006 of the Texas Civil Practice and Remedies Code.


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APPENDIX A

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B. Information Protected.2

2. PROTECTED INFORMATION is information designated in accordance with the

terms of this Protective Order.

3. PROTECTED INFORMATION may be designated as “CONFIDENTIAL” in

accordance with the terms of this Protective Order when the producing Party reasonably and in

good faith believes that such information constitutes non-public information concerning:

a. 3

b. 4

4. PROTECTED INFORMATION may be designated as “HIGHLY

CONFIDENTIAL”5 in accordance with the terms of this Protective Order when the producing

Party reasonably and in good faith believes that such information constitutes non-public

information concerning:

a. 6

C. Information not protected.7

5. Nothing in this Protective Order shall be construed to permit a non-producing

Party to designate documents (electronic or otherwise) or information as PROTECTED

2 The Parties may consider multiple levels of confidentiality. In some instances, information is designated according to certain tiers of confidentiality. Commonly, there is one basic level of confidentiality and additional information that is “HIGHLY CONFIDENTIAL,” or “CONFIDENTIAL – ATTORNEY’S EYES ONLY,” or “CONFIDENTIAL – FOR COUNSEL ONLY.” One layer of confidentiality is preferred where appropriate. 3 Here the Parties should list as specifically as possible the type of information to be protected. Possible examples include: confidential trade secrets, or any other such business, commercial, financial or private information that the producing party normally does not disclose without restrictions. 4 Should the Parties be proceeding under the Texas Uniform Trade Secrets Act, the Parties should consider using the definition of “Trade Secret” found in Section 134A.002(6), and further consider a designation that is specific to any “Trade Secret.” 5 Depending on the information sought to be protected, alternate designations to consider are “CONFIDENTIAL – ATTORNEY’S EYES ONLY,” or “CONFIDENTIAL – FOR COUNSEL ONLY.” 6 As in Footnote 3 above, here the Parties should list as specifically as possible the type of information to be protected. 7 Where applicable, this section can provide the Parties with the opportunity to specify certain information falling beyond the protections of this order.


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INFORMATION.8 Further, PROTECTED INFORMATION does not include documents or

information that is:

a. independently developed by the receiving Party without use of or reliance upon any of the producing Party’s PROTECTED INFORMATION;

b. rightfully acquired by the receiving Party from an independent source, without restrictions as to use or obligations as to confidence;

c. prior to disclosure, rightfully in the possession or knowledge of the receiving Party without restrictions of confidentiality;

d. publicly available in substantially the same form in which it was provided by the producing Party claiming confidentiality;

e. required by law to be made available to third parties; or

f. public knowledge acquired by means not in violation of this Protective Order.

D. Designating Protected Information.

6. PROTECTED INFORMATION may be designated by affixing the legend

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL”9 on such documents, material or

information prior to production. Stamping such a legend on the cover of a multipage document

or on an electronic storage medium (such as, but not limited to, a CD-ROM) designates all pages

of such document and/or all contents of such electronic storage medium, unless otherwise

indicated by the producing Party.

7. PROTECTED INFORMATION in a deposition transcript must be designated by

a statement on the record during the deposition classifying the testimony as PROTECTED

INFORMATION or by providing written notice of the portions of such testimony (by page/line

number) to be treated as PROTECTED INFORMATION within the time required for the return

8 In limited instances it may be that a party wants to preserve the right to designate material produced by the other party. In most cases, however, parties do not want to permit an opposing party the right to dictate how its own information is treated. 9 Designations of “CONFIDENTIAL – ATTORNEY’S EYES ONLY,” or “CONFIDENTIAL – FOR COUNSEL ONLY” may be included where applicable.


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of the transcript under Rule 203.1(b), unless a different time period is agreed to by the Parties.

Before the expiration of such time period, the transcript shall be treated as PROTECTED

INFORMATION.

8. The Parties agree that any document, material or information that includes any

medical, financial, or insurance records, the social security number, wage or payroll information

relating to any current or former employees of the Parties is PROTECTED INFORMATION

whether designated as such or not and may not be disclosed to any person without the prior

written consent of the producing Party except to counsel for the Parties and experts retained by

the Parties, to be used for purposes of this Action only. Provided, however, that such document,

material or information may be disclosed provided that the medical, financial, or insurance

records, the social security number, wage or payroll information relating to any current or former

employees of the Parties is redacted from such document, material, or information.10

E. Disclosure of Protected Information.

9. PROTECTED INFORMATION designated as “CONFIDENTIAL” may not be

disclosed by the receiving Party to any person without the prior written consent of the producing

Party or an order of the Court, except that it may be disclosed to:

a. the Court;

b. counsel for the Parties and employees and vendors of counsel, to be used for purposes of this Action only;

c. consultants or experts retained by the Parties, to be used for purposes of this Action only;

d. the Parties to this Action, to be used for purposes of this Action only; and

10 In certain cases, the language contained in this paragraph can be included where appropriate.


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e. witnesses in depositions and any hearings before the Court, including hearings on motions brought by the Parties, to be used for purposes of this Action only.11

10. PROTECTED INFORMATION designated as “HIGHLY CONFIDENTIAL”

may not be disclosed by the receiving Party to any person without the prior written consent of

the producing Party or an order of the Court, except that it may be disclosed to:

a. the Court;

b. counsel for the Parties and employees and vendors of counsel, to be used for purposes of this Action only;

c. consultants or experts retained by the Parties, to be used for purposes of this Action only;

d. the following specific representatives of the Parties to this Action, to be used for purposes of this Action only: 12; and

e. witnesses in depositions and any hearings before the Court, including hearings on motions brought by the Parties, to be used for purposes of this Action only.

11. Subject to Paragraphs 9 and 10, disclosure of PROTECTED INFORMATION

received from any Party shall not be made to any person under subparagraphs 9(c), 10(c) or

10(d) until such person has been provided with a copy of this Protective Order, agreed to be

bound by it, and signed an agreement in the same form as Exhibit A to this Protective Order.

Counsel obtaining such agreement(s) will retain them.

12. This Protective Order does not bar an attorney, in rendering advice to the

attorney’s client with respect to this Action, from conveying in a general way to a client

11 The Parties may wish to alter this provision such that designated information cannot be used this freely, and in particular may want to revise this provision in the case of information designated according to a separate, higher level of confidentiality. This same suggestion applies to Paragraph 10(e). 12 The Parties should identify certain qualifying representative here.


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representative not identified in 10(d) the attorney’s evaluation of PROTECTED

INFORMATION that such client representative is prohibited from receiving.13

13. If a document containing PROTECTED INFORMATION shows on its face that

someone is an author, “cc,” recipient, or addressee of the document, it may be disclosed to such

person and such person is not required to adhere to the provisions of Paragraph 11. Such

document will remain PROTECTED INFORMATION for the purposes of this Action.

14. Should any court, administrative agency, person or entity subpoena production of

PROTECTED INFORMATION from a Party who obtained such information under the terms of

this Protective Order, such Party shall promptly notify the producing Party of the pendency of

such subpoena before disclosing such information.

E. Use of Protected Information.

15. The Parties and all persons who are bound by this Protective Order agree not to

use or disclose any PROTECTED INFORMATION other than in connection with this Action.

16. Whenever PROTECTED INFORMATION is to be referred to or disclosed in a

hearing, deposition or any other proceeding in this Action, any Party claiming confidentiality

may exclude from the room any person who is not entitled to receive PROTECTED

INFORMATION, subject to the Court’s discretion.

17. If any pleadings, motions, memoranda, briefs, deposition transcripts, discovery

requests and responses, exhibits, and other documents that include, attach, paraphrase,

summarize, or otherwise contain any PROTECTED INFORMATION are to be filed with the

Court, the filing party must request in advance the Court’s permission to file such documents

under seal and file a motion that complies with the provisions of Rule 76a of the Texas Rules of

Civil Procedure. The non-filing Party agrees not to oppose such motion. The Parties recognize

13 This language tracks that of proposed Rule 76b of the Texas Rules of Civil Procedure.


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that under the provisions of Rule 76a of the Texas Rules of Civil Procedure, non-parties may

have standing to intervene in any motion to file documents under seal and the Parties

acknowledge that the Court may deny a motion to file documents under seal, even if the motion

is unopposed.14

18. 15 F. Inadvertent Production/Disclosure.

19. Inadvertent or unintentional production of documents or information containing

PROTECTED INFORMATION that is not designated according to this Protective Order is not a

waiver in whole or in part of a claim for confidential treatment. In addition, PROTECTED

INFORMATION previously produced or disclosed by the Parties may be subsequently

designated according to this Protective Order. The receiving Party shall have no liability for any

disclosure of undesignated PROTECTED INFORMATION occurring before the receiving Party

was placed on notice of the producing Party’s designation of such PROTECTED

INFORMATION.

20. A producing Party or non-party that inadvertently fails to designate an item

pursuant to this Protective Order at the time of the production shall be entitled to make a

correction. Such correction and notice thereof shall be made in writing, accompanied by

substitute copies of each document or information appropriately designated. Those individuals

14 There are a number of ways to address the issue of filing documents under seal. Parties may consider the sealing requirement as applicable only to information designated at a higher level of confidentiality, if contemplated by the Protective Order. Another alternative would be to require a certain number of days’ notice to the non-filing Party specifying that Party’s PROTECTED INFORMATION to be filed and putting the onus on the designating Party to file a Rule 76a motion. The critical point is that the Protective Order must contemplate compliance with Rule 76a if documents are to be filed under seal. 15 Where a case falls under the purview of the Texas Uniform Trade Secret Act (“TUTSA”), the Parties may include the following language: “If any pleadings, motions, memoranda, briefs, deposition transcripts, discovery requests and responses, exhibits, and other documents that include, attach, paraphrase, summarize, or otherwise contain any PROTECTED INFORMATION are to be filed with the Court, such documents must be filed under seal and this Protective Order shall constitute a sealing order under § 134A.006 of the Texas Civil Practice & Remedies Code.” A necessary component to invoking the sealing provisions of TUTSA will be to ensure that the Court staff and clerk’s office are adequately informed that such an order is in place. For this reason, a separate sealing order invoking Section 134A.006 is recommended.


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who reviewed the documents or information prior to notice of the misdesignation by the

producing Party shall return or destroy all copies of such misdesignated documents and honor the

provisions of this Protective Order with respect to the use and disclosure of any PROTECTED

INFORMATION contained in the misdesignated documents. Within a reasonable time after

receipt of the substitute copies, the receiving Party shall return or destroy the previously

unmarked items and all copies.

21. If PROTECTED INFORMATION is disclosed inadvertently in violation of this

Protective Order, the Party who learns of such a disclosure shall inform the other Party of the

disclosure and shall make every effort to prevent any further disclosure in violation of this

Protective Order.

G. Challenging Designation of Protected Information.

22. A dispute as to confidentiality shall not be grounds for delay of or for a refusal to

permit discovery. If any disputes arise concerning the designation of any PROTECTED

INFORMATION under the terms of this Protective Order, the Party challenging the designation

may seek a ruling by the Court on the propriety of the designation. All of the documents and

information that are the subject of the dispute will continue to be treated as PROTECTED

INFORMATION unless and until the Court rules otherwise. The Parties agree that no

presumption of confidentiality shall arise merely because of the existence of this Protective

Order.

H. Non-Parties.

23. If information or testimony is sought in discovery in this Action from a non-party,

and such non-party reasonably believes that the information sought is PROTECTED

INFORMATION, such non-party may designate such information in accordance with the


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provisions of this Protective Order and become bound by or seek the protection of the terms of

this Protective Order by an agreement under Rule 11 of the Texas Rules of Civil Procedure

executed by the Parties and such non-party.

I. Termination of this Action.

24. Upon final termination of this Action (whether by judgment, settlement or

otherwise), including all appeals, each Party, at its election, shall either request that all

PROTECTED INFORMATION be returned or destroyed. In response, the other Party will

either destroy the material and provide a letter certifying such destruction or return the

PROTECTED INFORMATION and destroy all copies, extracts and summaries of such

materials. For archival purposes, the attorneys in the law firms or legal departments representing

the Parties may retain one copy of all pleadings, transcripts, exhibits, written discovery

responses, documents attached as exhibits to pleadings or transcripts, including portions

designated under this Protective Order, and any written work product that deals with

PROTECTED INFORMATION, but such PROTECTED INFORMATION shall remain subject

to this Protective Order.

25. Upon final termination of this Action (whether by judgment, settlement or

otherwise), including all appeals, the provisions of this Protective Order shall continue to be

binding, except with respect to those documents and information that become a matter of public

record. This Court retains and shall have continuing jurisdiction over the Parties and recipients

of the PROTECTED INFORMATION for enforcement of the provisions of this Protective Order

following termination of this Action.


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J. Modification of this Protective Order/No waiver.

26. Nothing in this Protective Order prevents any Party or other person from seeking

modification of this Protective Order or from objecting to disclosure or discovery it believes to

be otherwise improper. In particular, nothing in this Protective Order precludes any Party from

seeking and obtaining, on an appropriate showing, such additional protection for any

information, document, or thing as the Party may consider appropriate in the circumstances.

27. If information subject to any claim of privilege, work product or any other ground

for withholding production is inadvertently produced to another Party, such production will not

prejudice or otherwise be a waiver of, or estoppel as to, any claim of privilege, work product or

any other ground for withholding production to which the producing Party would otherwise be

entitled.

28. The Parties enter into this Protective Order without waiver of, or prejudice to, any

claim, defense or objection to any issue of law or fact in this Action as well as any challenge to

joinder, jurisdiction or venue of any claims of any Party.

SIGNED this _____ day of __________________, 2014.

__________________________________________ JUDGE PRESIDING


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AGREED AND ENTRY REQUESTED BY: ____________________________ Counsel for ABC Company ____________________________ Counsel for XYZ Company


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EXHIBIT A NO. 2014-0000

ABC COMPANY, § §

IN THE DISTRICT COURT OF

Plaintiff, § §

v. § §

ANY COUNTY, TEXAS

XYZ COMPANY, § §

Defendants. § ANY JUDICIAL DISTRICT

AGREEMENT TO BE BOUND BY AGREED PROTECTIVE ORDER

I, ____________________________, agree that any PROTECTED INFORMATION16

disclosed to me by counsel of record for ____________________________, a party to the

above-styled action (the “Action”), will be used by me solely in connection with the Action. I

further state that I have received, read and agree to be bound by the Agreed Protective Order (the

“Protective Order”) entered by the Court, a copy of which has been given to me. To the extent I

am given access to PROTECTED INFORMATION, I will not in any way disclose, discuss, or

exhibit such information except to those persons whom I know are authorized under the

Protective Order to have access to such information. I will return, on request, all materials

containing PROTECTED INFORMATION to counsel for the producing Party. I hereby submit

to the jurisdiction of this Court for the purpose of enforcement of the Protective Order.

_______________________________________ Signed by Recipient Dated:__________________________________

16 It may be necessary to specify in the agreement to be bound whether the recipient is making the agreement only as to specifically categorized information, particularly if there are multiple levels of confidentiality.


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STATE BAR COURT RULES COMMITTEE

REQUEST TO ADD RULE 76b

TEXAS RULES OF CIVIL PROCEDURE

I. Exact wording of existing Rule: None.

II. Proposed Rule Amendment:

RULE 76b. Confidentiality Orders

1. Motion for Confidentiality Order. Any party may move for an order protecting the confidentiality of information produced in the course of discovery.

2. Motion Challenging a Designation of Confidentiality Under a Confidentiality Order. Any party may challenge a designation that discovery materials are confidential under a confidentiality order using the procedures set forth in this rule.

(a) To initiate a challenge to a designation of confidentiality, the challenging party must serve a written request that the designating party withdraw the confidentiality designation for the discovery materials at issue. The challenging party must specifically identify the challenged discovery materials and state the basis for challenging their designation as confidential.

(b) Within 15 days of service of a request under subparagraph 2(a), the designating party may serve a written response that withdraws the designation to some or all of the materials identified in the challenging party’s request.

(c) If any designations remain in dispute, any party may move for anorder determining whether the designation of the information as confidential is proper. The parties must treat disputed materials as confidential unless the court determines otherwise.

(d) Nothing in this rule prohibits an agreement or court order specifying different procedures for challenging a designation of confidentiality.

(e) Nothing in this rule shifts the burden of proof for establishing the confidential nature of information.

Committee Approved Revisions

APPENDIX B


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3. Order on Motion for Confidentiality Order. To protect the confidentiality of information, to facilitate the resolution of disputes, and to minimize the burdens on the parties and the court, upon a motion filed under paragraph 1, the court may enter an order regarding confidentiality in the form set forth in paragraph 5 below or in another manner the court deems appropriate given the particularities of the case.

4. Temporary Sealing. An order entered under paragraph 3 may provide that it serves as a temporary sealing order under Rule 76a(5). If the order serves as a temporary sealing order, the parties must post the order at the place for notices under Rule 76(a)(3). If court records are filed under temporary seal under the order, the temporary sealing expires 30 days after filing, unless within that time a party moves to seal the court records under, and provides the notice required by, Rule 76a(3). If such a motion is timely filed, the court records remain sealed until the motion is decided or judgment is final in the cause, whichever is later. Any procedures for filing confidential information under seal must otherwise comply with Rule 76a.

5. Form of Confidentiality Order.

[Case Style]

It is hereby ORDERED that:

1. “Confidential Information” in this Order means any information of any type, kind or character that a Designating Party designates as “Confidential,” whether it be a document, information in a document, orinformation disclosed during a deposition, in an interrogatory answer, or otherwise. Only information that the Designating Party in good faith believes is confidential may be designated as Confidential. Information is not entitled to treatment as Confidential Information under this Order if:

(a) the information is in the public domain at the time of disclosure;

(b) the information becomes part of the public domain, other than by violation of this Order;

(c) the receiving party can show that the information was in its rightful and lawful possession at the time of disclosure; or

(d) the receiving party can make some other showing of a lawful receipt of such information.


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2. “Qualified Persons,” as used in this Order means:

(a) attorneys of record for the parties in this cause and employees of such attorneys to whom it is necessary that the material be shown for purposes of this cause;

(b) the party or a party representative;

(c) actual or potential independent experts and consultants,or attorneys not of record for the parties in this cause;

(d) any document processing, document storage, reprographic, or similar litigation-support service providers working at the direction of a person described in subparagraphs (a), (b), or (c); and

(e) any other person the Court designates as a Qualified Person, after notice to all parties and an opportunity to be heard.

All Qualified Persons, except the Qualified Persons described in subparagraphs (2)(a) and those otherwise exempted by the Court, must sign Exhibit A before Confidential Information is disclosed to them. The parties may, by agreement, specifiy multiple party representatives who will serve as Qualified Persons. Ifa Qualified Person under subparagraph 2(d) is not a natural person, only its authorized agent must sign Exhibit A. Attorneys of record must retain all signed copies of Exhibit A.

3. “Designating Party” means a person that designates information as Confidential Information, if that person is a party to this cause or a nonpartywho signed Exhibit B to this Order, thereby agreeing to be bound by the terms of this Order.

4. All Confidential Information must be used solely for the purpose of preparation and trial of this cause, and must not be disclosed to any person except in accordance with the terms of this Order.

5. Confidential Information must not be disclosed or made available by any receiving party to persons other than Qualified Persons.

6. Documents or other discovery material produced in this cause may be designated as Confidential Information by (a) conspicuously marking each page “Confidential,” or (b) otherwise clearly identifying the Confidential Information.

7. Confidential Information in a deposition transcript must be designated as such by: (a) stating on the record at the deposition that testimony is “Confidential Information”; and (b) by providing written notice to all parties


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of the testimony that is Confidential Information, by page and line number and identifying any exhibits that contain Confidential Information, before the expiration of time provided by Rule 203.1(b) for the deponent’s return of the deposition transcript.

8. Information inadvertently disclosed without designation as Confidential Information may be designated as Confidential Information by notice to the receiving party, in writing, specifically identifying the Confidential Information.

9. Nothing in this Order prevents disclosure of Confidential Information beyond the terms of this Order if the Designating Party consents to such disclosure or, if the Court, after notice to all affected parties, orders such disclosure. Nor does anything in this Order prevent any counsel of record from utilizing Confidential Information in the examination or cross-examination of any person who is indicated on the document as being an author, source, or recipient of the Confidential Information.

10. In the event a party wishes to use any Confidential Information in any document filed with the Court in this cause, this Order serves as a temporary sealing order, sealing such Confidential Information under Rule 76a(5) without necessity for a separate motion or order. Notice of the filing of Confidential Information must be given to the Designating Party immediately upon filing the Confidential Information, unless the Designating Party is the party filing the Confidential Information.

11. Within 120 days after the conclusion of this cause and any appeal thereof, any Confidential Information produced by a party in the possession of any Qualified Person must be returned to the producing party or destroyed with a signed certification of destruction, except as otherwise agreed by the parties or ordered by this Court.

12. This Order does not bar an attorney, in rendering advice to the attorney’s client with respect to this cause, from conveying in a general way to a client who is not a Qualified Person the attorney’s evaluation of Confidential Information.

13. This Order does not prevent any Designating Party from seeking additional protection for its Confidential Information.

SIGNED this _____ day of ___________________, 20____.

___________________________________PRESIDING JUDGE


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[Case Style]

EXHIBIT A

1. My name is ___________________. My address is

_______________________.

2. My present occupation is __________________________, and I am

currently employed by ________________________.

I have received a copy of the Confidentiality Order in the above-captioned action

and have carefully read and understand its provisions. I agree to be bound by, and to

comply with, all of the provisions of the Confidentiality Order, and I specifically agree to

abide by its restrictions. I further agree to submit myself to the jurisdiction of the Court

entering this Order for purposes of any necessary enforcement of the terms of the

Confidentiality Order.

____________________________________Signature

Executed the ___ day of _________, 20__.


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[Case Style]

EXHIBIT B

AGREEMENT TO BE BOUND BY CONFIDENTIALITY ORDER

By execution hereof, [Insert Name] (“________________”) hereby agrees to be

bound by each and every term of the Confidentiality Order signed by the Court in the

above-captioned action on ___________________ ____, 20____.

In exchange for this agreement, _____________________ shall be considered a

Party to the Confidentiality Order in accordance with Paragraph 3 of the Confidentiality

Order. As a Party to the Confidentiality Order, __________________ may receive

Confidential Information in accordance with the terms of the Confidentiality Order and

may also designate information that it produces as Confidential Information.

__________________ agrees to be bound by all terms of the Confidentiality Order and

agrees to submit himself/herself/itself to the jurisdiction of the court entering this order

for purposes of any necessary enforcement of the terms of the order.

AGREED TO AND ACCEPTED this _____ day of _____________________,

20___.

On behalf of [Insert Name]

____________________________________[Name of authorized representative][Title]


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III. Brief statement of reasons for proposed new rule:

Many cases may require the parties to exchange or obtain from non-parties information that may be sensitive, confidential, or properly the subject of a protective order under Rule 192.6(b). Requests for confidentiality orders to facilitate such discovery is common in many civil cases, including healthcare liability, contract, personal injury, and trade-secret cases. However, litigants often propose agreed confidentiality orders based on standard forms from other jurisdictionsthat do not comply with Texas court procedures, particularly with the procedure in Rule 76a for filing documents under seal. This proposed rule is designed to facilitate the exchange of information by establishing a uniform procedure for requesting confidentiality orders, setting up a procedure for challenging whether particular items are confidential, and providing a standardized form order that complies with Texas court procedures. As set forth in paragraph 3 of the proposed rule, thestandardized form order is intended to apply to a majority of cases, but the form may be modified as dictated by the particularites of each case. Paragraph 1 of the proposed rule formally permits parties to move for a confidentiality order. Paragraph 2 establishes the procedure for challenging confidentiality designations. Paragraph 3 empowers the courtto use the proposed form order provided in paragraph 5 while clarifying that the court is not required to use the form order. Paragraph 4 provides for use of the confidentiality order as a temporary sealing order, and provides a deadline for the temporary sealing to expire if no motion to seal under Rule 76a(3) is filed. Paragraph 5 provides the form order. It is intended that parties may, by agreement, modify the terms of the form order set forth in paragraph 5 given the particularities of the case. The proposed form order in paragraph 5 was drafted using forms from other jurisdictions including federal form confidentiality orders, as well as the experience of practitioners from all over the State with different areas of practice.

Respectfully submitted,

Jody Hughes, Chair State Bar Court Rules Committee

March 2014


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