Discovery : Protective Orders
Are there limits to discovery?
There are limits to a party’s right to discovery.
- First, discovery is limited to things that are relevant to the issues in the lawsuit. Information is relevant if it changes whether a fact is more or less likely.
- A party must not disclose privileged information, like letters from an attorney or the work done by an attorney for the lawsuit.
It is important to remember that a party cannot use discovery rights just to harass or annoy another party or an outside witness. If a party is abusing discovery rights in a case, Civil Rule 26(C) lets the other party or outside party to ask the court for a protective order. A person can be protected from:
- undue burden or expense.
How can I get a protective order?
To get a protective order, the person must try to resolve the matter by talking to the attorney or the party abusing discovery. This is done by asking why these specific discovery requests are relevant to the lawsuit.
If talking doesn’t stop the misuse of discovery, you can file a Motion for Protective Order. This motion must tell the judge what you’ve done to try to resolve the problem. Also, you must tell why the discovery is not proper, and you should ask the court to restrict this discovery request in a particular way. Possible ways include:
- blocking this part of the discovery
- setting out the specific conditions for answering this discovery request, including a specific time or place
- stating that they discovery can only be done in a particular way
- limiting discovery to certain things
- stating that discovery can only be conducted with no one present or only someone appointed by the court for this purpose
- opening a deposition only after a court orders it to be reviewed
- setting ways for the disclosure of a trade secret or other confidential research, development or commercial information
- requiring the parties to file certain documents or information with the court at the same time, to be opened only when the court allows.
What is a Response to Motion for Protective Order?
If the other party files a Motion for Protective Order, make sure that the information you are seeking is really necessary to prove your case. If not, drop your request for that information.
If the information is necessary to prove your case, explain in a written response to the opposing person why it is relevant and in what way. If the other person has a valid reason for objecting to your request for documents or information, try to reach an agreement about how the information can be disclosed, perhaps limiting the scope or meeting at a certain time and place to hand over the information.
Parties often agree about how to handle sensitive information by limiting who can look at the information, how it can be used, etc. Sometimes a written agreement can be filed with the court, which can help hold everyone to the agreement.
If the other side refuses to produce discovery information that is necessary, and if you have tried to talk out a compromise, you must file a Motion to Compel Production of that information. If the other side wants a protective order, he or she must file a motion for that with the court, and you will respond in writing.
What happens if I ignore a Motion for a Protective Order?
If you do not file a response to a Motion for Protective Order, the court might grant the motion. If that happens, you lose any way to make the other party disclose that information. If the information is necessary for you to win your case, you risk losing your case if you do not take the opportunity to explain to the court why the information is relevant and should be disclosed.
|This content was created by the Ohio State Bar Foundation's 2006 Fellows Class - Keys to the Courtroom Project.
The information in this site is not intended as legal advice.
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