Protective Orders: Alternatives to "Attorney Eyes' Only"

Federal Rule of Civil Procedure 26 provides for broad discovery: "Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." "Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." These provisions apply with equal force in non-compete and trade secret litigation, but perhaps with greater consequence. After all, the purpose of such litigation is to protect confidential information, not to share it with competitors.

As a result, parties often fight over the extent to which the confidential information they produce in discovery may be shared by opposing counsel with their clients. Producing parties often seek to place "attorney eyes' only" limitations on the documents they produce. Receiving parties are often willing to treat documents confidentially, but they complain that an "attorney eyes' only" limitation will place