Protective orders best practices are essential in litigation, yet they’re often misunderstood or overlooked. A poorly drafted order can lead to disputes, accidental disclosures, or even court sanctions. Too broad, and it may be unenforceable. Too vague, and it creates confusion over what information is truly protected. Either way, getting it wrong can cost legal teams time, money, and credibility.
A well-crafted protective order does more than designate confidential information—it sets clear guidelines for handling sensitive data, minimizes the risk of disputes, and ensures compliance with court rules. Here’s how to draft protective orders that are both enforceable and effective.
Define Confidentiality in Protective Orders
A critical component of protective orders best practices is clearly defining what qualifies as “Confidential” or “Highly Confidential – Attorneys’ Eyes Only.” These labels must be supported by objective criteria, such as trade secrets, proprietary business information, or personally identifiable data. Establishing these definitions upfront minimizes disputes and ensures consistent application throughout litigation.
Avoid Overuse: Protective Orders Best Practices
Overdesignating documents as confidential is a common mistake that courts frequently reject. Protective orders should require a good-faith effort to classify documents accurately and include a process for challenging designations. This maintains credibility, keeps costs down, and reduces the risk of motion practice or judicial pushback.
Protective Order Compliance During Discovery
A protective order should do more than just classify information—it should set clear rules for how that information is handled. Without specific provisions on storage, access, and transmission, parties may interpret their obligations differently, leading to accidental disclosures or non-compliance.
The order should specify who is allowed to access protected information, how it should be stored, and whether additional security measures (such as encryption or restricted network access) are required. It should also outline whether information can be shared with experts, vendors, or third parties, and under what conditions. Clarity in these areas prevents misunderstandings and helps ensure compliance.
Handling Inadvertent Disclosures Under Protective Orders
Mistakes happen, but an inadvertent disclosure of confidential or privileged information can have serious consequences if the protective order doesn’t address how to handle them. Courts generally recognize that unintentional mistakes shouldn’t automatically result in privilege waiver, but only if there is a process in place to correct them.
A strong protective order should include a clawback provision that allows parties to retrieve inadvertently produced confidential or privileged documents without waiving protection. It should also outline a procedure for notifying opposing counsel of an inadvertent disclosure and specify the steps required to return or destroy the document. These safeguards help prevent minor errors from escalating into major legal battles.
Filing Rules and Post-Litigation Protective Order Planning
Filing confidential information with the court presents another challenge. Many courts have strict requirements for sealing documents, and parties that fail to comply may find their sensitive information becoming part of the public record.
A protective order should provide clear instructions for filing under seal, including whether a party must obtain court approval before submitting confidential materials. It should also align with local court rules to avoid unnecessary delays or rejected filings. Taking the time to address this issue upfront can prevent last-minute scrambling and costly re-filings.
Plan For the End of Litigation Before It Arrives
Confidentiality obligations don’t necessarily disappear when a case is over. A protective order should address what happens to confidential materials once litigation concludes. Failing to plan for this can result in disputes over data retention, destruction, or ongoing confidentiality obligations.
The order should specify whether confidential materials must be returned or destroyed and under what timeframe. It should also clarify whether confidentiality provisions survive beyond litigation, particularly for sensitive business information. Establishing these terms early helps avoid unnecessary post-litigation conflicts.
A Strong Protective Order Prevents Problems Before They Start
Protective orders aren’t just another procedural step—they are essential safeguards in litigation. When drafted correctly, they protect sensitive information, reduce disputes, and ensure compliance with legal requirements. But when drafted poorly, they create confusion, invite challenges, and expose parties to unnecessary risk.
By setting clear confidentiality levels, avoiding overdesignation, establishing handling rules, addressing inadvertent disclosures, defining court filing procedures, and planning for the end of litigation, legal teams can ensure their protective orders are enforceable, effective, and aligned with best practices. Thoughtful planning at the outset prevents costly mistakes and makes the discovery process smoother for everyone involved.
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This post is part of our ESI Flow blog series—your guide to practical, forward-thinking strategies in electronic discovery and litigation readiness.
