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all right hi again welcome back attorney steve andre and welcome to another exciting episode of litigation whiteboard all right today we are talking about an important topic whether you're in state litigation federal litigation or probably even in any other kind of litigation for that matter the protective order what is a protective order you hear this word all the time i'm going to be seeking a protective order what does that mean well without further ado let's head to the attorney steve litigation white board okay here we are we're back i told you guys i would be back thank you for your patience i had a lot of things going on i was preparing for two trials my my head deep up in paperwork everything so but i'm back i have a great video today on protective order okay so what happens sometimes you're in a litigation and somebody says well i'm gonna i'm gonna seek uh i'm gonna seek your medical records let's say i'm to seek your psych records i heard your i heard you have a psychologist i'm going to get your records and you say whoa whoa whoa whoa i'm going to need a protective order you're not just going to take my medical records my psychological records and do whatever you want with them put them into the court system on the federal cases are on pacer pacer online i'm not just going to let you take those records and post it up there and and use it in a trial i want a protective order i want to protect myself my name my reputation my family whatever from here we have it here protect from embarrassment harassment annoyance oppression undue burdens and you may have confidential and trademark trade secrets in a litigation like trade cigar what's a trade circuit the colonel's secret recipe which by the way i haven't liked so much but the colonel secret recipe is a trade secret so if you get into a trade secret case they're not going to put the colonel's secret recipe on on facebook or on the federal pacer system they're not going to do that so this is why we have protective orders protective orders okay you can find these in the federal rules under our discovery provisions frcp which stands for federal rules a civil procedure okay so you're going to find those are the rules that govern you in a federal court if you're in a state court like california may you may have the code of civil procedure your states will have their own rules if you're in federal court we're looking at the federal rules that's what they teach you in law school they teach you the federal rules okay so you get here and you say wow they're trying to get my psych records it's embarrassing annoying i need a protective order to protect me from the party that's trying to reveal these now there's two ways you can do a protective order and i have it right here by motion or by step so usually uh between attorneys you're gonna the first thing you're gonna try to say is well why don't we agree or why don't we stipulate to a protective order and the other party will say yeah okay yeah usually they'll agree as long as it's something reasonable and something we can we can agree on okay um but you can do it by the motion if they don't if they say um go file your motion we're not gonna do we're not gonna stipulate to that go file your motion okay you have of course usually your meet and confer obligations i have i have a video on how do you file a federal court motion motion like a pro go check that off you want to know what i'm talking about you could file a motion and in these motions or in these even in these stipulations what you're going to be looking for is good cause um narrowly defined terms what are we going to do okay and oftentimes that comes down to what we call a disclosing party who's going to be disclosing protected material in a receiving party for example a subpoena say say uh this is the plaintiff in the case and the plaintiff says i'm going to serve a subpoena on facebook okay let's call this facebook let's left right left-handed i'm going to serve a subpoena on facebook they're going to come up with information information and this party may say well you can seek that stuff but i mean there's stuff in there i don't want everybody to know that has nothing to do with the case it's embarrassing harassing annoying oppressing or causes an undue burden so in a case like that you say well i want to see what the discovery is i want to challenge it or i want to more likely i want to um not challenge but i want to designate this as either confidential or parts of the discovery as confidential or what we call attorney eyes only and i'll talk about that in a second okay so you can reach these agreements or you can file a motion but basically what you're trying to do is you want to basically protect yourself and your parties and your third parties and your family members from basically the abuses of litigation so you're protecting somebody by getting a protective order just keep that in your mind okay big points on the bar exam by the way if you happen to get a fact pattern like this and boom you're saying you know what would you do i would go seek a protective order to protect them okay so um you can do it by motion or by step you need your good cause standard um usually a judge is going to want to make sure it's good because for example if you say well let's agree to seal all records let's agree to seal all the documents that we get let's agree to seal well in court cases there is a pr preference for judicial access for the public to access judicial documents and not to have them sealed from public public view now if there's a good reason and you have good cause and you could say judge here's why here's why we've agreed to seal the records you know that's one thing but there would be a little balancing test should does the public have right to access does it not should we allow you to seal records blah blah blah should we allow the things you're looking for um in your in your stipulation or in your motion for protective order should we grant it should we modify it the courts have wide wide latitude in how to respond with a protective order whether it's by motion or by step okay so these need to be fair reasonable narrowly tailored all that good stuff when you get into a litigation sometimes you'll have this clause right here attorney eyes only and i would encourage you highly if you see that clause that says attorney's eyes only or counsel's eyes only something like that be very careful what you're saying here is when you when you designate something as attorney eyes only you're saying i'll share it with this attorney and this attorney we will share it and we'll look at it but not the client we don't want the client to see it's something so secretive it's private we don't want people to see it it's turning eyes only so you look at the document and you say wow that's incredible and you can advise your client but you can't show your client the document so that can be a problem if you're needing to get experts in the case and things like that you don't want to just go uh willy-nilly just agreeing to these things because they're they're there and you just go oh attorney's eyes only okay we can designate things attorney eyes only so be very careful when you see this in a protective order i have here be very careful a lot of times this will apply where you have trade secrets things like that but be very careful don't just jump into that if you need to get legal advice get some legal advice on that before you're signing off on this once you stipulate it becomes an agreement assuming the judge approves of it and so you need to be very careful so other than that it's a way to protective orders are the way to think keep things confidential or to prevent embarrassment annoyance harassment those kinds of things maybe the judge says well i'll let you do the depo but only three hours you can double the family member but only three hours let's let's avoid annoyance and undo things like that so keep in mind this is a key tool in the litigators toolbox lots of courts now especially federal courts have model protective orders model protective orders and they will want you to use these so usually you like the northern district of california okay federal court you can pull up the model the model uh protective order the courts will want you to use this you can try to modify a little bit as long as you're doing things right here doing it right and there's model protective orders that can be used so check out your court does your court have one do they like one do they suggest one if not you may have to create one now for me these are one of the most mind-boggling things in in law i don't love candidly i don't love doing them you have to do them you have to read them very closely sometimes they can be 10 pages long and you got to know what's going on who's disclosing who's receiving what is the process if somebody's calling everything attorney's eyes only when it really isn't what is the what is the process to challenge that all that gets laid out in a protective order and i have up here um some courts don't like these protective orders they're due to the risk of what we call satellite litigation in other words you're already here fighting one case you're going back and forth and then you're over here fighting about what does the protective order mean what's the protective order say so now you got more little sub disputes over here about every little thing every little designation so you want to be careful about that okay but that's really it um i think do i have anything else here that's pretty much it pretty simple it's a protective order now you know more than most people do more than your average bear about what a protective order where'd you learn it attorney steve's litigation whiteboard civil litigation you can find us on the web at attorneysteve.com make sure you subscribe to this channel we're going to hit 25 000 this year 25 000 so we've been working hard for a lot of years we thank you guys for watching so much leaving your comments giving us a like and if you absolutely think it's rubbish okay go ahead if it makes you feel better all right attorney steve have a great week uh this is your last chance get out there and vote get out there vote whichever way the dice rolls folks we're gonna be fine we can live together we can succeed together we can do it so let's let's all stay together okay take care now