What is a Motion For Protective Order?
How do you legally define it?
What are the essential elements you should know!
In this article, we will break down the legal definition of Motion For Protective Order so you know all there is to know about it!
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Motion For Protective Order
A “motion for protective order” is when a party seeks protection from the court to either prevent abuse from the other or protect it in a certain way in the context of a lawsuit.
The most typical example of when a motion for a protective order is filed is when a party is asked to provide trade secret information in the context of discovery.
In this case, the party from whom the trade secret information is asked will seek a protective order to either prevent the other party from pursuing such a request or asking the court to share the information under seal.
What is the legal definition of a motion for protective order?
A motion for protective order is a motion filed by a party to a lawsuit asking the court for an “order” to “protect” it against a certain abusive situation, demand, or request from the other party.
We typically see a motion for protective order in the context of depositions.
For example, a party may be seeking to depose a witness on a very broad scope.
The other party may seek a deposition protective order to limit the scope of the deposition or have the examination be limited to certain matters.
“Motion for protective order discovery”, “protective order deposition”, or “Protective order discovery” are terms we hear when parties are engaged in a discovery battle in the context of a lawsuit.
You have lawyers who send a laundry list of hundreds, if not, thousands, of documents, information, and material from time to time.
Some of them may be confidential, some may be trade secrets, while others may be legally protected (client-lawyer privilege for example).
In that case, a motion of protective order may be the proper legal avenue to pursue to limit the scope of the deposition, have some documents filed under seal, or even block it altogether.
The laws of each state or jurisdiction may specifically define how a motion for a protective order will work.
For example, in the U.S. District Court, District of Kansas, Rule 26.2 is titled “Motions for Protective Orders” and states that if a party files a motion for protective order, it will stay the discovery until the court renders an order.
Another example of statutes relating to motions for protective order are the California laws.
Under the Code of Civil Procedure in California, Section 2025.420 states that a party may move for a protective order before, during, or after deposition.
The court may render a appropriate decision in the circumstances and include that the deposition not be taken, changing the deposition time, the scope of the deposition be limited, testimony be taken in writing, or other protective measures.
The objective of a protective order motion is to seek fair and just protection from the court.
For example, when a party is using “discovery” as a means to get access to trade secrets or confidential information, the protective order will help tone down a potentially unreasonable request.
However, the courts are also mindful of the fact that the use of the motion for protective order, in of itself, can be abusive.
For example, a party may attempt to stonewall the opposing party from discovery it is legally entitled to.
In that case, the courts will reject the motion.
The protective order’s main objective is to limit duplicative discoveries, limit the undue burden on the adverse party, prevent harassing discoveries, or allow a party to access information that should be legally protected.
Show of Good Cause
In a lawsuit, the parties are given legal latitude to find facts relevant to their case in order to successfully prove the factual and legal basis of their claim.
However, a party is not given “carte blanche” to do whatever they want and collect any piece of information possible.
Under the procedural laws, the court has inherent powers to ensure an orderly and sound advancement of the proceedings.
As such, when a party’s request is abusive or excessive, a motion for protective order may be filed to challenge that request.
The courts will generally protect individuals from unwanted annoyance, embarrassment, oppression, undue burden, or expenses.
Furthermore, the court rules are generally designed to prevent a party from going into a “fishing expedition” in the context of discoveries.
As a result, if a motion for protective order is filed, the courts will want to see that there is good cause to grant it.
Without good cause, the court will reject the motion.
However, when good cause is presented to the court, the judge may render an order in an attempt to balance the conflicting interests.
For instance, under the California laws, a party has a broad right to conduct discovery but the courts will not allow fishing expeditions or impose more burden on a party than the value of the information needed.
A court will grant a motion for protective order and limit or block depositions when a party demonstrates “good cause”.
Some of the common arguments invoked by the moving party is that the information requested by the opposing party is protected by a legal privilege, such as:
- Attorney-client privilege
- Clergy-penitent privilege
- Doctor-patient privilege
- Spousal privilege
- Privilege against self-incrimination
- Attorney work-product
It’s possible for a party to waive such privileges in court but if the waiver would be prejudicial, then a motion for protective order may need to be filed.
Let’s look at how a sample motion for protective order looks like.
Generally, you have the following layout:
- The name of the court
- The identification of the parties
- The docket number
- The title of the motion
- The party’s written pleading (background, arguments)
- The conclusion sought by the moving party
Here is what an actual motion looks like:
So what is the legal definition of Motion For Protective Order?
Let’s look at a summary of our findings.
Motion For Protective Order:
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