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Publication Date

2013

Abstract

Litigants commonly struggle to balance the need to comply with discovery requests and the desire to protect valuable trade secrets. Protective orders to help strike that balance. Questions arise, however, when one of the parties violates that protective order and discloses the opponent's confidential information. Chiefly, what remedies are available for a party whose invaluable intellectual property has been disclosed? At least one circuit has held the most common sanction, payment of attorney's fees, is unavailable for a violation of a protective order. Generally, Federal Rule of Civil Procedure 37(b)(2) governs sanctions for violations of discovery orders, but the text of that rule limits its applicability to orders to provide or permit discovery. Accordingly, violation of an order that does not "provide or permit discovery" cannot be sanctioned using a court's rule-based authority. Circuits are currently split as to whether protective orders, as provided by Rule 26(c), fall within Rule 37(b)(2)'s scope. Namely, the Fifth Circuit has held that protective orders provide or permit discovery and any violation of those protective orders is sanctionable under Rule 37(b)(2), while the Eleventh Circuit has held the opposite. Both circuits' reading of the rule has a reasonable basis in the text, but the Fifth Circuit's approach should be adopted because it better effectuates the four original purposes of discovery sanctions: compelling discovery, punishment of culpable parties and attorneys, deterrence of others from engaging in similar behavior, and compensation for those parties who suffered because of the discovery abuse.

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