United States District Court, W.D. Kentucky, Paducah Division
BEN COMER, et al. PLAINTIFFS
McCRACKEN COUNTY DETENTION CENTER, et al. DEFENDANTS
OPINION AND ORDER
King Magistrate Judge
Judge Thomas B. Russell referred this matter to Magistrate
Judge Lanny for ruling on all discovery motions (Docket #
25). The parties submitted two Agreed Protective Orders
(Docket # 26 & #27). For the reasons set forth below, the
Court declines to enter the Agreed Protective Order at Docket
#26 for failure to comply with the “good cause”
requirement of Federal Rule of Civil Procedure 26, and the
sealing requirements under the Local Rules. The Court will
enter the Agreed Order at Docket #27 because it is limited to
documents already protected by the Health Insurance
Portability and Accountability Act of 1996
(“HIPAA”), codified primarily at Titles 18, 26,
and 42 U.S.C. (2003) and does not pre-judge whether documents
may be filed under seal.
Court has increasingly scrutinized stipulated motions for
protective orders that do not make the necessary showing of
good cause required by the Rules of Civil Procedure and case
authority. See Bussell v. Elizabethtown Independent
School Dist., 3:17-cv-00605-GNS (W.D. Ky. Oct. 23, 2018)
(Edwards, J.) (discussing why the Court will enter the second
proposed agreed protective order because it develops why a
protective order is necessary) (Pacer); see also
Wellmeyer v. Experian Info. Sols., 3:18-cv-94-RGJ (W.D.
Ky. May 30, 2018) (Pacer); Middleton v.
Selectrucks of America, LLC, 3:17-cv-602-RGJ (W.D. Ky.
Sept. 21, 2018) (Pacer); Mitcham v. Intrepid U.S.A.,
Inc., 3:17-cv-00703-CHB (W.D. Ky. Oct. 1, 2018) (Boom,
J.) (Pacer); Roberson v. KentuckyOne Health, Inc.,
3:18-cv-00183-CRS-RSE (Aug. 29, 2018) (Edwards, J.) (Pacer);
Savidge v. Pharm-Save, Inc., 3:17-cv-000186-CHB
(W.D. Ky. July 9, 2018) (Whalin, J.) (Pacer); Effinger v.
GLA Collection Co., 3:17-cv-000750-DJH (W.D. Ky. March
28, 2018) (Lindsay, J.) (Pacer); Fleming v. Barnes,
3:16-cv-264-JHM (W.D. Ky. Feb. 27, 2017) (Whalin, J.)
Federal Rule of Civil Procedure 26(c)(1)(G), “[t]he
court may, for good cause, issue an order to protect a party
or person from annoyance, embarrassment, oppression, or undue
burden or expense, including . . . requiring that a trade
secret or other confidential research, development, or
commercial information not be revealed or be revealed only in
a specified way….” Good cause exists when the
party moving for the protective order “articulate[s]
specific facts showing ‘clearly defined and serious
injury' resulting from the discovery
sought….” Nix v. Sword, 11 Fed.
App'x 498, 500 (6th Cir. 2001) (citing Avirgan v.
Hull, 118 F.R.D. 252, 254 (D.D.C. 1987)). For example,
in determining whether to grant a protective order in a trade
secret case, the court considered the following factors:
(1) the extent to which the information is known outside of
(2) the extent to which it is known by employees and others
involved in [the] business;
(3) the extent of measures taken . . . to guard the secrecy
of the information;
(4) the value of the information to [the business] and to
(5) the amount of effort or money expended . . . in
developing the information;
(6) the ease or difficulty with which the information could
be properly acquired or duplicated by others.
Williams v. Baptist Healthcare Sys., No.
3:16-CV-00236-CRS, 2018 WL 989546, at *2 (W.D. Ky. Feb. 20,
2018) (citing Nash-Finch Co. and Super Food Servs., Inc.
v. Casey's Foods, Inc., 2016 WL 737903, at *2 (E.D.
Ky. Feb. 23, 2016) (citations omitted)). “The burden of
establishing good cause for a protective order rests with the
movant.” Nix v. Sword, 11 Fed. App'x 498,
500 (6th Cir. May 24, 2011); see also In re Skelaxin
Antitrust Litig., 292 F.R.D. 544, 549 (E.D. Tenn. 2013)
(“To show good cause, the moving party must articulate
specific facts that show a clearly defined and serious injury
resulting from the discovery sought; mere conclusory
statements will not be sufficient.”).
of the Federal Rules of Civil Procedure affords the Court
with broad discretion to grant or deny protective orders.
Parker & Gamble Co. v. Banker's Trust Co.,
78 F.3d 219, 227 (6th Cir. 1996). Because entry of a
protective order is contrary to the basic policy in favor of
broad discovery, the party that seeks a protective order has
a heavy burden to show substantial justification for
withholding information from the public. See
Williams, 2018 WL 989546, at *2; see also,
Proctor & Gamble Co. v. Banker's Trust Co.,
78 F.3d 219, 227 (6th Cir. 1996) (“While District
Courts have the discretion to issue protective orders, that
discretion is limited by the careful dictates of Fed.R.Civ.P.
26 and is circumscribed by a long-established tradition which
values public access to court proceedings.”); Meyer
Goldberg, Inc. of Lorain v. Fisher Foods, Inc., 823 F.2d
159, 162 (6th Cir. 1987) (“As a general proposition,
pretrial discovery must take place in the public unless
compelling reasons exist for denying public access to the
regard to the agreed protective order tendered by the parties
at docket number 26, the parties have not met their burden in
showing that the documents they seek to protect and deem as
confidential should be shielded from the public. The tendered
Order does not specify the documents that require protection;
rather, the Order outlines generally what could be
considered confidential, such as “material that
contains a trade secret, protected health information,
personally identifiable information of non-parties, or any