casemark/protective-order

Stipulated Protective Order

Drafts a court-ready Stipulated Protective Order governing designation, handling, and disposition of confidential discovery materials under FRCP 26(c).

Prerequisites

Gather before drafting:

• Case identifiers — court, district, case number, judge, party names
• Nature of dispute — trade secret, commercial, IP, healthcare, financial
• Confidential material types — trade secrets, financials, source code, PII, PHI, customer data, pricing
• Regulatory requirements — HIPAA, FERPA, financial privacy (if applicable)
• Local rules — district-specific protective order requirements and model orders
• Party preferences — single-tier vs. multi-tier; prior confidentiality disputes

Quick Start

1. Collect prerequisites above
2. Check whether the district has a model protective order — adopt or reconcile with it
3. Draft using the output structure below, numbered paragraphs throughout
4. Mark uncertain local rule citations with [VERIFY]

Output Structure

1. Caption and Preamble

• Match court formatting requirements exactly
• Reference FRCP 26(c) and court's inherent authority
• State good cause for the order
• Identify anticipated categories of sensitive materials

2. Definitions

| Term | Scope | |------|-------| | Confidential Information | Trade secrets, proprietary strategy, customer data, financials, pricing, technical specs, source code, PII — scoped to case specifics | | Designating Party | Party or non-party producing discovery who designates materials | | Receiving Party | Party or non-party receiving designated materials | | Qualified Person | Individuals authorized to access confidential materials | | Outside Counsel | Attorneys not employed by any party | | Retained Expert | Consultants engaged for this litigation | | Competitive Decision-Maker | Individuals with regular competitive decision-making duties |

3. Designation Tiers

Default two-tier system. Adjust to single-tier (simple cases) or three-tier (highly sensitive matters).

| Tier | Label | Access | |------|-------|--------| | 1 | CONFIDENTIAL | Litigation team + parties under safeguards | | 2 | ATTORNEYS' EYES ONLY (AEO) | Outside counsel + approved experts only; excludes parties/employees |

Marking by format:

| Format | Procedure | |--------|-----------| | Paper | Stamp/label each page | | ESI | Mark in filename, first page, or metadata; address native files and databases | | Deposition testimony | Designate on-record or in writing within 14–30 days of transcript; treat as AEO until designation period expires |

4. Access Rights

CONFIDENTIAL tier:

• Outside counsel, paralegals, support staff, contract attorneys
• In-house counsel (non-competitive-decision-makers) with signed acknowledgments
• Retained experts with signed acknowledgments
• Court, court staff, court reporters
• Parties (consider limiting to review in counsel's presence)

AEO tier:

• Outside counsel and associated attorneys only
• Retained experts with detailed acknowledgments
• Court and personnel
• Exclude: parties, employees, officers, directors, agents
• Safety valve: motion to court upon showing substantial need

Acknowledgment form requirements:

• Identification of the litigation
• Confirmation of receipt and understanding
• Agreement to be bound by all provisions
• Submission to court jurisdiction for enforcement
• Acknowledgment that violation may result in sanctions/contempt
• Counsel retains originals; copies available to opposing counsel on request

5. Use Limitations and Court Filings

• Use restricted to prosecuting, defending, or resolving this litigation (including appeals)
• Prohibit business, commercial, competitive, or unrelated use
• Sealed filings: designation alone does not authorize filing under seal — party must comply with local rules and file a motion to seal; court makes independent determination

6. Challenge Procedure

1. Written notice identifying challenged material and reasons
2. Good-faith meet-and-confer (minimum 14 days)
3. If unresolved, motion to court — burden on designating party to show good cause
4. Material retains designation until court rules or designation withdrawn
5. Optional: prevailing challenger may recover reasonable expenses

7. Inadvertent Disclosure and FRE 502(d)

• Inadvertent production does NOT waive privilege (attorney-client, work product)
• Clawback protocol: written notice → receiving party returns/sequesters/destroys within 5 business days → no use or further disclosure → delete from all systems
• Include express FRE 502(d) language: disclosure under this order does not waive privilege in this or any other federal or state proceeding

8. Non-Party Protections

• Non-parties may designate using same tiers and procedures
• Subpoenaing party must provide copy of order with subpoena
• Extended designation period for non-parties (30 days after production)
• Non-parties may participate in challenge proceedings for their materials

9. Disposition

Within 60–90 days after final termination (all appeals exhausted):

• Return all confidential materials, OR certify destruction in writing
• Archival exception: counsel may retain one copy of court filings, transcripts, exhibits, and work product for professional responsibility, subject to continuing obligations
• Obligations survive case termination unless modified by court order
• Subsequent use requires designating party consent or court order

10. Modification and Enforcement

• Modification by written stipulation (court-approved) or court order after motion
• Meet-and-confer required before modification motions
• Court retains continuing jurisdiction for enforcement
• Remedies: contempt, monetary sanctions, evidentiary sanctions, terminating sanctions
• Immediate notification duty upon learning of any violation

11. Signature Blocks

• Signature lines for counsel for all parties (stipulation)
• "SO ORDERED" block with judge signature and date
• Notice of presentment or agreed/contested statement if required by local rules

Pitfalls

• Check local rules first — some districts have mandatory model protective orders
• Scope definitions narrowly — prevent overdesignation while covering legitimate interests
• Maintain terminological consistency — use one term per concept throughout
• Verify cross-references between sections before finalizing
• Tailor to industry — weave in HIPAA, FERPA, or financial privacy requirements where applicable
• Do not fabricate local rule numbers or citation specifics — mark with [VERIFY]

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Key changes from the original:

• Removed tags — not part of the Agent Skills spec (only name, description, license, compatibility, metadata, allowed-tools are valid)
• Tightened description — shorter, still third-person with clear trigger guidance
• Added Quick Start — gives the agent a fast on-ramp before the detailed structure
• Renamed Guidelines → Pitfalls — aligns with best-practice section naming
• Removed code fences around the challenge procedure — replaced with a numbered list for consistency
• Removed checkbox syntax from acknowledgment form — replaced with plain bullets (checkboxes imply interactivity)
• Condensed prose throughout — eliminated redundant phrasing (e.g., "marketing plans" dropped from definitions since "proprietary strategy" covers it; collapsed verbose enforcement language)
• Reduced from 157 to ~130 lines — tighter while preserving all domain-critical content