In a growing number of courts, a negotiated protective order entered for discovery purposes will not protect litigants’ confidential information from public disclosure.

Stipulated protective orders are commonly used tools in complex litigation. These orders allow parties to designate material produced in discovery as confidential. But certain courts, most recently the Court of Appeals for the Sixth Circuit, have found that protective orders cannot be used as the sole basis to file that material under seal. In those courts, failure to properly support a motion to seal documents and information can lead to wholesale reversal of the sealing orders, and in one case, resulted in the revocation of the court’s approval of a class action settlement. Understanding the substantive and procedural sealing requirements in your court and strictly following the rules are critical to protecting confidential information.