3.11 Protective Orders

• Library: Federal Civil Practice in Virginia (Virginia CLE) (2023 Ed.)

3.11 PROTECTIVE ORDERS

Protective orders have two uses. The first and most common use is to protect confidential information and documents from disclosure. The second use is to guard against improper or abusive discovery.

3.1101 Federal Rule.

In 2015 Fed. R. Civ. P. 26(c) was amended as follows:

(c) Protective Orders.

(1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending—or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(A) forbidding the disclosure or discovery;

(B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery;

(C) prescribing a discovery method other than the one selected by the party seeking discovery;

(D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;

(E) designating the persons who may be present while the discovery is conducted;

(F) requiring that a deposition be sealed and opened only on court order;

(G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and

(H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs.

(2) Ordering Discovery. If a motion for a protective order is wholly or partly denied, the court may, on just terms, order that any party or person provide or permit discovery.

(3) Awarding Expenses. R ule 37(a)(5) applies to the award of expenses.

3.1102 Eastern District.

Counsel should be aware that courts are no longer willing to enter protective orders that prospectively allow filing under seal and, moreover, that some judges take a very narrow view of what can be filed under seal. Indeed, the Fed. R. Civ. P. 16(b) scheduling orders entered by the magistrate judges in Alexandria expressly note that filings "under seal are disfavored and discouraged." E.D. Va. Civ. R. 5 was amended in 2016 to provide a new procedure for requests to file documents under seal. The Fed. R. Civ. P. 16(b) Scheduling Orders in the Alexandria division require compliance with E.D. Va. Civ. R. 5.

A. Local Rule.

E.D. Va. Civ. R. 5, amended in 2016, provides:

L OCAL CIVIL RULE 5

REQUESTS TO FILE DOCUMENTS UNDER SEAL AND THE HANDLING OF DOCUMENTS UNDER SEAL

(A) Unless otherwise provided by law, Court rule, or prior order of the Court, no document or portion of a document may be filed under seal unless the filer has complied with the procedures set forth herein.

(B) As Provided by Law: A party filing a document or a portion of a document under seal pursuant to a governing statute, rule, or order shall note on the face of the document that it or a portion of

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