Discovery Protective Orders

Question

In Federal Rules of Civil Procedure what is the purpose of getting Protective Orders from discovery request?

Same question ask another way. What are Protective Orders intended to protect the asking party from?

Thanks in advance.

Answer 1

A protective order from discovery protects the person who would otherwise have to provide discovery (e.g. answer interrogatories, answer deposition questions on a subject, provide documents responsive to a request for production of documents, to allow someone to inspect premises, or to participate in a forensic medical exam), from having to provide that discovery.

In the absence of a protective order, someone who fails to comply with discovery requests can be sanctioned in a variety of ways (in the Federal Rules of Civil Procedure, these are mostly set forth in FRCP 37). Sanctions can include exclusion of evidence at trial, adverse determinations of factual points in a case, an order to pay someone else's attorneys' fees, or in the case of a third-party subject to a subpoena under FRCP 45, contempt of court penalties including arrest, incarceration and/or fines. No sanctions will be imposed, if a motion for a protective order is pending at the time the discovery is to be provided or if a protective order has been granted pursuant to such a motion.

There are a variety of reasons that they are granted. I've seen almost all of them at one time or another, either personally in my practice, or in reported court opinions and in legal journalism. Some of the more common ones include the following:

1. There are technical or jurisdictional problems with the discovery.

For example, a subpoena delivered to a third party is mailed rather than hand delivered, or a deposition is scheduled requiring the person whose deposition is being taken to travel 500 miles from Cuba to attend, or the rules applicable to the case only allow someone to ask 25 interrogatories and the other side asked 250 interrogatories.

A deposition notice for a corporation has to follow a process to identify who in the company actually shows up to answer questions (under FRCP 30(b)), and a protective order might issue if this is not followed.

Often a deposition of a party can be obtained only with reasonable conferral with the other party about the scheduling of the deposition and a protective order could be issued if there is no conferral regarding scheduling.

If someone does not speak English as their native language, a protective order requiring that an interpreter be made available might be issued.

2. The subject matter of the discovery is privileged or otherwise secret.

For example, it asks for emails providing legal advice between an attorney and a client, or for a psychotherapist's notes from a treatment session, or confidential communications between a husband and a wife, a protective order might protect the target of the discovery from having to comply. Similar considerations apply if classified national defense documents are sought or if there is a demand to reveal a trade secret like the secret blend of herbs and spices in KFC (in some cases that might be disclosed anyway, but only after the person receiving it agrees not to release it outside the litigation).

In response to an interrogatory, someone might claim the 5th Amendment with respect to some questions and would seek a protective order allowing them to not answer those questions.

3. The materials sought are disproportionate to the controversy, expensive to provide, irrelevant or cumulative of other materials already provided.

A protective order might issue in the face of a demand for 5 terabytes of records in a small claims suit over a $100 defective toaster that didn't didn't cause a personal injury seeking a refund of the purchase price, but you might be allowed to get the same records in a class action lawsuit on behalf of 1000 people whose houses burned down when the toasters malfunctioned.

Also, if the materials costs of lot of money to produce (for example, by having a party's employees pull files from their filing system and make copies), the court in a protective order might still require the documents to be produced but make the production at the requesting party's expense.

In a dispute over a large number of payments, for example, in a case where a real estate investment trust for hundreds of properties is alleged that a national property management company had a pattern of embezzling funds received from tenants, a court's protective order might limit a forensic examination of bank records to a representative sample of the entire banking records for tens of thousands of tenants, rather than all of the records, to prevent cumulative and unnecessarily expensive discovery.

In particular, protective orders are almost always granted when a party seeks discovery about the ability of a defendant to pay a judgment if one is entered in a case before a judgment has entered, rather than about the merits of the dispute.

4. The discovery is intrusive and/or offends a person's dignity.

A physical inspection, for example, of a person's rectum, might be denied even in a personal injury case where the condition of that body part is at issue, if medical records already provide the relevant information and there is no good reason to question their accuracy, even if ordinarily, if someone had say, broken their arm, a physical inspection of the individual might be ordered.

A deposition which a party strategically sets when an Olympic athlete is scheduled to compete in their Olympic event might be quashed with a protective order requiring that a more convenient date be scheduled, so that the need to prevent the deposition from happening doesn't determine the outcome of the case.

5. The discovery could harm the thing that is the subject of the discovery.

A protective order might prohibit or regulate the manner in which an inspection of a computer chip maker's "clean room" or a biotech company's hazardous materials laboratory could be conducted. Or a request for destructive testing of materials involved in an accident might be denied.

A deposition requests targeting a physically frail individual, perhaps someone in an ICU, might be quashed by a protective order because the deposition process could harm them.

6. Protection from abusive or threatening situations.

In rare circumstances, for example, where an attorney or self-represented party who is requesting discovery has been abusive in prior depositions or hearings, or where a self-represented party has a restraining order preventing contact with a deposition witness, a court will issue of protective order governing the circumstances of a deposition or dispensing with one entirely.

For example, the court might order that the deposition be conducted by telephone, by Facetime or Skype, or in the court house under the supervision of a bailiff and/or the judge, or might deny a deposition in person and limit the deposition to written questions instead.