False Security: How Courts Have Improperly Rendered the Protections of the Protective Order Illusory

The protective order is perhaps one of the most useful and “taken for granted” discovery devices contemplated by the Colorado and Federal Rules of Civil Procedure. The purpose of a joint protective order in civil litigation is to permit the parties to produce business information without fear that the information will be disseminated publicly, and with a court order that the information be used only for purposes of the present litigation. Blanket protective orders serve the interests of a just, speedy, and less expensive determination of complex disputes by alleviating the need for and delay occasioned by extensive and repeated judicial intervention. The seminal case in the Tenth Circuit Court of Appeals is United Nuclear Corporation v. Cranford Insurance Company. In United Nuclear, the defendant insurance companies entered into a protective order with the plaintiff which declared all discovery materials to be confidential and prohibited their use or disclosure other than for preparation for or use at trial. The Tenth Circuit recognized the importance of such blanket protective orders to the efficiency of civil discovery and complex litigation. Litigants and courts who construe the language set forth in United Nuclear, creates a presumption in favor of modification of a protective order for any collateral litigants, do an injustice to the remaining language of the case, and to the importance of the protective order as a necessary discovery measure in complex litigation. In Bond v. Utreras, the Seventh Circuit recognized there is no public right of access to information exchanged between private litigants in pre-trial discovery. For present day purposes however, it would behoove practitioners and their clients to be wary of relying too much on the perceived protections of a blanket protective order