Western District of Washington Judge Marsha Pechman denied the parties’ stipulated protective order in A Place for Mom, Inc. v. Leonhardt, 06-0457 MJP, on December 7. In this case, the plaintiff elder care referral service alleges that after the defendant former employee’s employment terminated, the former employee forwarded calls to plaintiff’s telephone number to his new business, also a defendant, constituting a false designation of origin under the Lanham Act and an unfair and deceptive act under Washington’s Consumer Protection Act. The defendants deny the allegations. In support of their stipulated protective order, the parties jointly stated:
“Each party has confidential or proprietary documents, things and information that are protected in the normal course of business, but will likely be discoverable in this litigation. Examples of the sensitive documents and information that the parties seek to protect include the names of families and clients and information on sales, costs and profit margins. Public disclosure of such information or disclosure of sources other than those indicated in this proposed order may harm each party’s ability to compete in the marketplace or may cause embarrassment to the parties named in the confidential documents.”
Judge Pechman responded that “the Court will not sign stipulated protective orders to authorize documents to be filed under seal simply based on the fact that they were marked by the parties as confidential in the course of discovery.” Citing Local Rule CR 5(g)(1), the Court found “[t]here is a strong presumption of public access to the court’s files and records which may be overcome only on a compelling showing that the public’s right of access is outweighed by the interests of the public and the parties in protecting files, records, or documents from public view.” It added that “parties seeking an order to seal any documents must provide a specific description of particular documents or categories of documents they seek to protect ‘and a clear statement of the facts justifying a seal and overcoming the strong presumption in favor of public access’” (emphasis in original).
Judge Pechman concluded that “[t]he parties may agree on confidentiality among themselves, but when they ask that the Court be involved, they must make the requisite showing. The stipulated protective order received by the Court does not make sufficiently clear that the parties cannot seal any court filings in this matter absent a motion to do so which is granted by the Court.” This decision illustrates Washington courts’ increased reluctance to shield documents from public view merely because the parties ask it to.