Protective Orders - What is a party required to establish in order to obtain a protective order under Tennessee Rule of Civil Procedure § 26.03?

Analysis:  Tennessee Rule of Civil Procedure § 26.03 allows a party to file a motion for a protective order preventing or limiting discovery that is requested by the opposing party under certain circumstances.  Rule 26.03 provides that the party requesting the protective order must show "good cause" and the specifically listed circumstances that allow a party to obtain a protective order include when "justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense."  Tennessee Rule of Civil Procedure § 26.03

Tennessee Rule of Civil Procedure § 26.03 provides a list of things the court can do in a protective order.  This list includes the following

(1) that the discovery not be had;

(2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place;

(3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;

(4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;

(5) that discovery be conducted with no one present except persons designated by the court;

(6) that a deposition after being sealed be opened only by order of the court;

(7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way;

(8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.

In Ballard v. Herzke, 924 S.W.2d 652 (Tenn. 1996) the Tennessee Supreme Court discussed Rule 26.03 and provided a balancing test for assessing when a protective order is appropriate.  In order to establish the good cause requirement of Rule 26.03 “the moving party must show that disclosure will result in a clearly defined injury to the party seeking disclosure.  Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not amount to a showing of good cause.”  Ballard at 658 (citing Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir.1986)). 

The Tennessee Supreme Court went on to provide a balancing test in order to determine whether good cause was found.  This balancing test is as follows:

Factors in the balance weighing against a finding of good cause include: (1) the party benefitting from the protective order is a public entity or official; (2) the information sought to be sealed relates to a matter of public concern; and (3) the information sought to be sealed is relevant to other litigation and sharing it would promote fairness and efficiency. 

On the other hand, factors in the balance weighing in favor of a finding of good cause include: (1) the litigation involves private litigants; (2) the litigation concerns matters of private concern or of little legitimate public interest; and (3) disclosure would result in serious embarrassment or other specific harm.

Ballard at 658, 659.  The court noted that no specific weight is assigned to any of the six elements for or against a finding of good cause for a protective order.  Ultimately, the appropriateness of a protective order in a particular case is "entrusted to the sound discretion of the trial court and it will not be reversed on appeal, absent a showing of abusive discretion."  Ballard at 659.

Ultimately, a protective order can be a very useful tool in Tennessee civil litigation but there are specific requirements to establish when a protective order is appropriate.  Tennessee litigators should consult Rule 26.03 and the Ballard decision whenever they are going to file a motion for protective order or are in the process of opposing such a motion.  This most often occurs when a client requests that certain documents should be protected from disclosure outside of the case or even in the case to the opposing party.