The Parties Will Ask the Court to Choose a Protective Order.
Sometimes discovery is bogged down from the very beginning when the parties cannot agree on the form of a protective order. This is particularly a problem in patent infringement cases and other big-stakes matters involving sensitive business information.
Sometimes the parties will negotiate a month or two trying to reach agreement on the language of a protective order, to no avail. When that occurs, the parties have wasted several weeks and their clients’, or their own, time and money.
Most judges have a good sense of what they think should and should not be in a protective order. Rather than negotiate for weeks then submitting the dispute to the judge, the parties should put a 48-hour limit on protective order negotiations.
The parties should exchange protective order proposals. Then, they should negotiate. If agreement cannot be reached on the form of a protective order within 48 hours of the time when the proposals are exchanged, both sides will write a letter to the Court including each side’s preferred version and, without argument, ask the Court to select one or the other as soon as possible.
Agreed protective orders, like most agreements, tend to get done if there is some pressure to get them done. The 48-hour deadline puts maximum pressure on the parties to reach an agreement and begin the real work of putting together their case. If the parties fail to reach such an agreement, the Court can quickly decide which form of order is best without enduring tedious argument from counsel.
Each court can reduce the time spent on protective orders if it will have a standard protective order which it presumptively enters in each case. The Court can make it clear that there is a very high burden on anyone wants something different.