Seeking Protective Orders for Sensitive Personal or Business Information in Federal Subpoenas

Seeking Protective Orders for Sensitive Personal or Business Information in Federal Subpoenas

Getting slapped with a federal subpoena can be intimidating. You may worry about having to turn over sensitive personal or business information. But there are ways to protect that information through court orders called “protective orders.” This article will explain what protective orders are, when you can get them, and how to ask a court for one.

What is a Protective Order?

A protective order is a court order that limits how certain information can be used or who can see it. It lets you shield sensitive info from getting out to the wider world. Protective orders are common in federal cases involving subpoenas.

Subpoenas are demands for documents, testimony, or other evidence. They get issued in both criminal and civil cases. The feds can subpoena you even if you’re not directly involved in the case.

You might get subpoenaed because the feds think you have useful information. But you may worry about turning over private or confidential materials. This is where protective orders come in.

Protective orders set rules on how subpoenaed information can be handled. For example, an order may limit who can access the materials. It may also restrict how they can be used. This helps safeguard sensitive details.

When Can You Get a Protective Order?

You don’t automatically get a protective order. You have to ask the court for one. You need to show “good cause” for why an order is needed.

For example, you might argue the subpoena requires revealing trade secrets. Or it demands private employee records that could violate privacy laws if released. The court then decides whether to issue an order.

Even if you don’t request an order, the parties in the case may agree to one. For instance, the plaintiff and defendant may want to keep some materials confidential. This could include things like company financial records or proprietary research.

The court can also order protections on its own. For example, the judge may see a need to shield victim identities or medical histories. But you can’t count on the court acting without being asked. So if you get a subpoena, consider whether to request a protective order.

How to Ask for a Protective Order

If you’re not a party in the federal case, you can move for a protective order after getting served with a subpoena. Here are some tips on doing this:

• Act quickly – Don’t wait too long after getting the subpoena. Federal rules require you to object or ask for protections “before the earlier of the time specified for compliance or 14 days after the subpoena is served.”
• File a written motion – You need to file a formal request with the court asking for a protective order. Your motion should explain what materials the subpoena demands and why they need confidentiality.
• Suggest specific terms – Include what limits you want the order to impose. For instance, propose that access is restricted to the parties’ attorneys only.
• Send copies to all parties – Provide your motion to the lawyers for both sides in the case so they can respond.
• Be prepared to negotiate – The parties may suggest changes to what you proposed. Be ready to discuss adjustments to reach agreement.

If you’re served a subpoena for personal or private information about a victim, special rules apply. The court must approve the subpoena before it’s served. This gives victims a chance to object or ask for protections.

What Might a Protective Order Do?

Protective orders can take different forms depending on the needs of the case. Some common protections include:

• Limiting access – The order may specify who can view or get copies of the materials. Often access is restricted to lawyers and experts only.
• Requiring confidentiality agreements – Anyone accessing the info may have to sign an agreement to keep it secret.
• Filing under seal – The order may require the party who subpoenaed the materials to file them with the court under seal so they stay private.
• Redacting info – The order may require the party to black out or remove sensitive details before sharing materials.
• Destroying info after case ends – The order may require subpoenaed materials to be destroyed when the litigation concludes.

The court has broad discretion in crafting terms to protect confidentiality. The scope of limitations depends on the circumstances.

When Protective Orders Get Denied

Of course, you can ask but not always receive. Courts don’t automatically grant protective orders. It’s not enough to just assert the information is confidential. You have to show specific harm or prejudice that would come from releasing it.

And the court has to balance your privacy interests against the public’s right to an open judicial process. If the subpoenaed materials are important evidence, the court may order them turned over even if sensitive.

Still, it’s usually worth asking for protections if you have good reasons. The court may agree to some limitations, even if not all you requested. Any shielding of sensitive data can help reduce risks from disclosure.

Appealing a Denial

If your motion gets denied, you may be able to appeal the ruling. The process differs depending on if the subpoena comes from a criminal or civil case.

For criminal cases, you generally can’t appeal until after the final judgment. But for civil cases, you may be able to appeal right away. The rules vary by circuit, so check your court’s specific procedures.

Alternatives like asking to reconsider or seeking mandamus relief also may be options. If you’re denied protections, discuss the possible next steps with your lawyer.

Complying With a Protective Order

If the court does issue a protective order, be sure to follow its terms. This is important, because violating an order can lead to sanctions. Penalties can include being held in contempt of court.

For instance, only share subpoenaed materials with authorized people like the court and designated lawyers. Don’t disclose protected information to unauthorized third parties. And handle materials as specified in the order, like restricting access to a secure location.

Get legal advice if you ever have questions on complying with an order’s specifics. It’s smart to err on the side of being careful.

Getting Your Own Counsel

Remember that the lawyers in the federal case represent the parties, not you. So consider hiring your own attorney to help argue for and negotiate a protective order. Though it adds costs, having counsel look out for your interests can be worthwhile.

Your lawyer can advise if protections are really needed. They can suggest terms to request. And they can handle interactions with the court and other parties.

The stakes are high when your sensitive information is in someone else’s hands. So think about getting experienced counsel on your side.

The Takeaway

Getting a federal subpoena can be scary if it demands your private or confidential information. But you’re not powerless – you can speak up and push back. Consider requesting a protective order from the court. If granted, it can help safeguard your sensitive data and interests.

Act promptly, explain what you want shielded and why, and be ready to negotiate terms. Protective orders strike a balance between privacy and open courts. With good reason, the court may agree to impose limits that provide some reassurance. So it’s usually worth asking.

References

Protective Order. (n.d.). Retrieved from Westlaw

United States Courts. (n.d.). Retrieved from United States Courts

The Sedona Conference. (2007). Retrieved from The Sedona Conference

Cornell Law School. (n.d.). Retrieved from Cornell Law School

HHS.gov. (n.d.). Retrieved from HHS.gov

GovInfo. (n.d.). Retrieved from GovInfo