Chapter 9 - § 9.2 • CONFIDENTIALITY ORDERS: THE LEGAL STANDARD

• Jurisdiction: Colorado

§ 9.2 • CONFIDENTIALITY ORDERS: THE LEGAL STANDARD

Both the federal and Colorado versions of Rule 26(c) provide that a court may, for good cause shown, issue an order to protect a party or person from "annoyance, embarrassment, oppression, or undue burden or expense." This provision is seen as authorizing the use of both particular and blanket protective orders. The party seeking a protective order bears the burden of establishing its necessity, but the entry of a protective order is left to the sound discretion of the court. The party seeking a protective order cannot sustain its burden of establishing the requisite "good cause" merely by offering conclusory statements, but instead "must make a particular and specific demonstration of fact in support of its request."

➤ F.R.C.P. 26(c)(1); C.R.C.P. 26(c); Stroup v. United Airlines, Inc., No. 15-cv-01389-WYD-CBS, 2016 WL 7176717, at *2 (D. Colo. Sept. 16, 2016) (quotation omitted); see also Rohrbough v. Harris, 549 F.3d 1313, 1321 (10th Cir. 2008); Centurion Indus., Inc. v. Warren Steurer & Assoc., 665 F.2d 323, 325 (10th Cir. 1981); Nakumura, 2019 U.S. Dist. LEXIS 178797, at *11-12, 2019 WL 5095684, at *4 ("[T]he Tenth Circuit has been clear that parties — and courts — should not reflexively restrict documents upon which the parties (and as a result the courts) rely upon to seek or afford relief."); Blatchley v. Cunningham, No. 15-cv-00460-WYD-NYW, 2015 U.S. Dist. LEXIS 171825, 2015 WL 9434459, at *2 (D. Colo. Dec. 24, 2015).

The standard for entering a blanket protective order requires first that the party requesting the protection must make some threshold showing of good cause to believe that discovery will involve confidential or protected information of some kind, which need not necessarily rise to the level of a trade secret, but which must in some regard be confidential. The requesting party must further show that public disclosure of the confidential information would be harmful to some legitimate interest, be that a competitive commercial interest or a personal right of privacy. This showing may be offered on a categorical basis, as opposed to a document-by-document itemization. In this context, the party who receives documents designated as confidential under a blanket or umbrella protective order must have a right under the order to contest the confidentiality designation. At that stage, the party seeking the confidentiality protection must shoulder the burden of proof in justifying whether to...