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]`

---

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