I give credit to The Seattle Times for really opening up Washington courts. It used to be common for parties to sign a stipulated motion for protective order and to have the court pretty much go along with it. Not anymore. After the Times’ series, “Your courts, their secrets,” ran last year, Washington courts have become much more reluctant to make court filings non-public.
The Western District case of Bourne International, Inc. v. Stoler, No. 06-5680, reflects this sentiment. Plaintiff Bourne International alleges the defendant Chet Stoler, a former officer, director, and shareholder of plaintiff, usurped a corporate opportunity by setting up a competing importing business, the South Seas Trading Company, and infringed plaintiff’s trade dress in the process. Plaintiff moved to compel production of documents pursuant to a subpoena it served on the parties’ import broker. The broker appeared and opposed the motion on grounds the subpoena sought “privileged, protected, or proprietary information, trade secrets, or other confidential commercial information.” The Western District granted the motion in part and denied it in part. The parties then moved for the entry of a stipulated protective order.
On May 15, Judge Robert Bryan instead entered an Order Declining to Enter Stipulated Protective Order. He began with the premise: “This is a public court, and its business should be conducted publicly unless there is a specific reason to keep things confidential.” The court went on to find the stipulated order was deficient for six reasons.
First, it found: “The parties have not provided the Court with a privilege log or demonstrated agreement that particular documents constitute trade secrets. Without such a showing of good cause, issuance of a protective order would be inappropriate and premature. The parties may, of course, agree on confidentiality among themselves, but when the parties request the involvement of the Court, the parties must make the requisite showing.
“Second, the stipulated protective order appears to govern the actions of persons not parties to the protective order. The protective order should govern the conduct only of parties thereto.
“Third, the proposed protective order expressly provides the Court retains jurisdiction over the protective order but that only laws of the State of Washington apply. The applicability of state and federal law to the protective order is an issue not yet before the Court and beyond the bounds of a proper protective order.
“Fourth, the stipulated protective order provides for filing documents under seal. This provision is not in accord with Local Rule CR 5(g).
“Fifth, the stipulated protective order provides that other persons may become parties to the protective order without court action. While other persons may agree to be bound by the stipulated protective order, only current signatories thereto are parties to the proposed protective order.
“Finally, the order must contain a provision that the court may change the terms of the protective order on its own motion after notice to the parties and an opportunity to be heard.”
In December, Western District Judge Marsha Pechman rejected another stipulated protective order for some of these same reasons. STL discussion of that case here with the rejected stipulated order here.