Having spent about two years of my early career swimming in this area, this is a topic near and dear to my heart. Interesting related information risk issues to consider when it comes to addressing internal access management and confidentiality controls within the firm tied to these obligations. Perhaps we’ll see a future article on that. In the meantime, Dentons partners Shari L. Klevens and Alanna Clair share: “What to Know About Protective Orders” —

• “Protective orders are a tool used by litigators to help manage and prevent the public dissemination of sensitive documents and information a party receives during the course of litigation. Although such orders are very commonplace in commercial litigation, they are rarely ‘one size fits all.'”
• “Indeed, most protective orders or confidentiality agreements governing discovery will require some tailoring to the specific needs of the case and client. This article provides some tips for lawyers considering the use of protective orders.”
• “An effective protective order would typically be designed to protect financial information, trade secrets, or other proprietary information. To the extent the litigation is expected to involve production of documents or testimony that would otherwise be considered ‘confidential,’ a protective order will help minimize the risk of exposure.”
• “In addition to the specific subject matter of the litigation, most lawyers will also consider whether the case calls for two tiers of protection. Two-tiered protection generally involves designating a broad category of documents and information as confidential and then designating a more finite subset as ‘Attorneys’ Eyes Only.’ Typically ‘Attorneys’ Eyes Only’ information is not permitted to be shared with the actual parties to the litigation, but only their lawyers. That heightened designation may be appropriate for cases involving trade secrets, patent infringement or other competitive commercial disputes.”
• “If the client does not appreciate that it will not be permitted to access ‘Attorneys’ Eyes Only’ information, it could lead to some tension or even frustration on the part of the client. By taking time to explain the ramifications of that level of protection before the client agrees to the parameters of the protective order, lawyers could avoid such disputes.”
• “In addition, some protective orders will include provisions that impose obligations on the litigants after resolution of the lawsuit. This could include provisions governing the destruction or return of materials exchanged during discovery. Advising the client of those obligations could help reduce the risk of violating the agreement by failing to comply.”
• “Although many protective orders follow similar templates to protect confidential information, there are situations in which exceptions or carve-outs are appropriate. For example, most protective orders require the parties and their counsel to return or destroy confidential information after a lawsuit ends or settles. But what if the lawyer later receives a malpractice claim from the client involved in the suit?”
• “If the lawyer followed the terms of the protective order, the lawyer may no longer have access to documents or transcripts that would assist the lawyer in proving what happened in the case. Absent a carve-out in the protective order, the lawyer could be deprived of one of the best defenses available to a malpractice claim: the full and complete file. To mitigate such risks, some lawyers will include carve-out provisions in protective orders to allow the lawyers to retain a copy of the file for use in malpractice actions.”