Lawsuit Confidentiality Agreements Are Hurting Public Access

SecretsLawsuits often include confidentiality agreements entered by courts to keep parts of the litigation secret.  However, the entry of such “agreements” can harm parties’ rights to a fair and public trial.  If you are being asked to enter into anything like the below confidential order, contact our Florida lawyers for assistance:


IT IS HEREBY ORDERED, as between Plaintiff and Defendant:

1. Any party to this Order (“Order”) may designate as “Confidential and Protected Matter”: (1) any personnel, financial, confidential, payroll records, or otherwise personal information, documentation or files that pertain to any current or former employees of Publix; and (2) any proprietary, financial, consumer, confidential, or otherwise sensitive information, documentation or files about Publix, its current or former customers, vendors, and affiliates.

2. “Confidential And Protected Matter” shall be used solely for the purposes of this litigation and not for any other purpose, litigation, or proceeding.

3. This Order will extend to any document derived from a source other than a party to this action if the document received from that source is identical to or a copy of a document provided by a party and designated as “Confidential and Protected Matter.”

4. Confidential and Protected Matter shall be labeled or otherwise designated “Confidential” or the equivalent. Any Confidential designation that inadvertently is omitted subsequent to the entry of this Order may be corrected by written notification to opposing counsel.

5. If any party or counsel wishes to use or inquire into a Confidential and Protected Matter at any deposition, the portion of the deposition transcript that relates to the Confidential and Protected Matter will be designated and treated as a Confidential and Protected Matter and subject to the provisions herein.

6. Because Plaintiff is not the party who has an interest in sealing any documents, Plaintiff shall be required to provide ten (10) days written notice to Defendant of Plaintiff’s intent to file on the docket any records subject to the confidentiality agreement. The defendant shall be responsible for filing an appropriate motion with the Court requesting that the proposed documents be filed under seal. In the event, Defendant fails to file a motion to seal within the ten days the Plaintiff shall not be required to file the document under seal. In the event Defendant files, a motion to seal the Plaintiff shall not file the documents on the docket until the Court has ruled on the respective motion.

7. Each non-lawyer given access to Confidential and Protected Matter or information pursuant to the terms of this Order shall be advised that the Confidential and Protected Matter is being disclosed in accordance with and subject to the terms of this Order and may not be disclosed other than pursuant to the terms hereof.

8. Entering into, agreeing to and/or complying with the terms of this Order shall not prejudice in any way the right of a party at any time: (1) to seek a determination by the Court of whether any particular item or piece of information should be subject to the terms of this Order; or (2) to seek relief on notice from any provisions of this Order, either generally or as to any particular document or piece of information.

9. Whenever a party objects to the treatment of a document or a portion of a deposition transcript and/or interrogatory response as Confidential under this Order, counsel for that party shall give such notification in writing to counsel for the party seeking Confidential treatment. Within twenty (20) days of receipt of said notice, the party seeking Confidential treatment designation may apply to the Court for a ruling that the document or transcript shall be treated as Confidential and Protected Matter pursuant to the terms of this Order. The document or transcript shall be afforded Confidential and Protected treatment pursuant to the terms of this Order until the Court rules on such application.

10. The parties reserve the right to seek guidance from the Court regarding the specification of appropriate safeguards concerning evidence at the trial or may do so by later agreement at or before the trial.

11. Upon the termination of this litigation, the parties shall return to counsel for the producing party documents containing the Confidential and Protected Matter produced by the other party and all copies thereof, or the parties may agree upon appropriate methods of destruction. Any copies of documents containing Confidential and Protected Matter which bear the notations of a non-producing party or the non-producing party’s counsel need not be returned to counsel for the producing party and shall be destroyed promptly by counsel for the non-producing party, who shall give written notice of the destruction of the documents to counsel for the producing party.

12. If Confidential and Protected Matter in the possession of a receiving party is subpoenaed or ordered to be produced by any court, administrative or legislative body, or any other person or organization purporting to have authority to subpoena or require the production of such data or information, the party to whom the subpoena or order is directed shall not provide or otherwise disclose such documents or information without first notifying counsel for the producing party in writing of: (1) the information and documentation which is requested for production in the subpoena or order; (2) the date on which compliance with the subpoena or order is requested; (3) the location at which compliance with the subpoena or order is requested; (4) the identity of the party or entity serving the subpoena or order; and (5) the case name, jurisdiction and index, docket, complaint, charge, civil action or other identification number or other designation identifying the litigation, administrative proceeding or other proceeding in which the subpoena or order has been issued.

13. This Order is without prejudice to the right of any person or entity to seek a modification of this Order at any time.



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