*1 This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court, and Standing Order 13-02.

This matter is before the Court on Defendant's Motion for Entry of Confidentiality and Protective Order [Doc. 127] and Plaintiffs' Motion to Compel ‘Redesignated’ Discovery and for Fees and Expenses (“Motion to Compel”) [Doc. 154]. The parties appeared before the undersigned on February 23, 2023, for a motion hearing.[1] Attorneys Donald Vowell and William Hickerson appeared on behalf of Plaintiffs. Attorneys Kristine Roberts and Robert Tome appeared on behalf of Defendant.[2] For the reasons explained below, the Court GRANTS IN PART Defendant's motion [Doc. 127] and DENIES WITHOUT PREJUDICE Plaintiffs' motion [Doc. 154].

I. ANALYSIS

The present disputes before the Court relate to the entry of a protective order regarding discovery exchanged in this case and Defendant's confidential designations. The Court will address the motions in the order in which they were filed and presented at the motion hearing.

A. Defendant's Motion for Entry of Confidentiality and Protective Order [Doc. 127]

The parties generally agree that a protective order is necessary in this case. The parties, however, cannot agree to the provisions in the protective order, and they have presented competing orders [see Doc. 128-1 and 150-1] for this Court's review. During the motion hearing, Defendant argued that its protective order is more practical and consistent with Sixth Circuit authority. Plaintiffs responded that Defendant is designating all documents produced in discovery as confidential, so they propose a protective order that has two different designations: (1) Actual Confidential Discovery Material, and (2) Claimed Confidential Discovery Material. Plaintiffs define “Actual Confidential Discovery Material” as “material that the parties agree is Confidential or has been so determined by the Court” [Doc. 150-1 p. 3]. Plaintiffs define “Claimed Confidential Discovery Material” as documents that the designating party “believes contains or discloses information that would be entitled to confidential status under Rule 26(c)(1)(G)” [Id.]. Plaintiffs also argue that Defendant's provision regarding sealing documents is confusing and that Defendant's proposed protective order requires them to maintain the confidentiality of documents that are filed in the public record.

Rule 26(c) of the Federal Rules of Civil Procedure allows courts to enter protective orders upon a showing of good cause. Fed. R. Civ. P. 26(c). Specifically, under Rule 26(c)(1)(G), the court may protect “trade secrets or other confidential research, development, or commercial information not to be revealed or to be revealed only in a specified way.” Fed. R. Civ. P. 26(c)(1)(G). The Court routinely enters protective orders to govern discovery in cases as long as they are not violative of Rule 26(c). Also called “blanket protective orders,” the Sixth Circuit has recognized the practical use of such orders. Howes v. Ashland Oil, Inc., 932 F.2d 968, 1991 WL 73251, at *1 (6th Cir. May 6, 1991) (table opinion) (explaining that blanket protective orders “greatly expedite the flow of discovery material while affording protections against unwarranted disclosures”) (quotation and footnote omitted)). And while they certainly have practical uses, they are also “prone to abuse in the federal system.” Maxchief Invs. Ltd. v. Plastic Dev. Grp., LLC, No. 3:16-CV-63, 2017 WL 710956, at *4 (E.D. Tenn. Feb. 22, 2017).

*2 After considering the parties' filings and presentations at the motion hearing, the Court will enter Defendant's proposed protective order [Doc. 128-1] with slight modifications to alleviate Plaintiffs' concerns regarding the use of confidential documents that are filed in CM/ECF and the procedure the parties should use when filing documents stamped confidential in CM/ECF.[3] The Court declines to adopt Plaintiffs' proposed protective order given the confusion between Actual Confidential Discovery Material and Claimed Confidential Discovery Material. Material is either confidential or it is not. The Court agrees with Defendant that having two designations will create confusion because in various provisions the documents are treated similarly [see Doc. 150-1 ¶ 6] while in other provisions the documents are treated differently [see id. ¶ 9]. Further, Claimed Confidential Discovery Material does not appear to be protected from disclosure, despite that it may very well be protected under Rule 26(c)(1). Accordingly, the Court GRANTS IN PART AND DENIES IN PART Defendant's Motion for Protective Order [Doc. 127]. The Court will enter a modified version of Defendant's proposed order [Doc. 128-1].

B. Plaintiffs' Motion to Compel [Doc. 154]

Plaintiffs' motion requests that the Court order Defendant to make a good-faith determination as to what documents it claims should be classified as confidential after an individualized review of each document and then to re-serve on Plaintiffs' counsel a re-designated version of its document production. For instance, Plaintiffs state that Defendant designated 607 emails as confidential without performing an individualized review of the content of the emails. In addition, Plaintiffs request that the Court determine that the documents previously filed as [Docs. 119-4 and 138-4] and the additional documents filed as [Doc. 154-1] do not constitute a “trade secret or other confidential research, development, or commercial information” under Rule 26(c)(1) and that Defendant be ordered to re-produce documents without the confidential designation. Plaintiffs also request their attorney's fees incurred for filing the motion.

Defendant responds that it has already conducted a good-faith determination of confidentiality based on the individualized review that Plaintiffs seek, and Plaintiffs simply disagree with Defendant's conclusions. Defendant states that Plaintiffs take issue with approximately 607 emails that it designated as confidential, but Defendant argues that courts regularly find similar documents confidential. Defendant submits that an award of attorney's fees is inappropriate because Rule 37 is not applicable, Plaintiffs' motion was not necessary given that the parties had already briefed the issue of the protective order, and its designations are supported by case law.

Plaintiffs reply that some of the documents in dispute have already been filed on the public record. While secrecy is fine at the discovery stage, Plaintiffs argue that different considerationsapply when material is made part of the record. Plaintiffs submit that Defendant has failed to submit any evidence to support its designations, and they assert that an award of attorney's fees is appropriate.

As an initial matter, at the time Plaintiffs filed their motion, the Court had not entered a protective order given that the parties submitted competing protective orders as addressed above. The Court therefore finds Plaintiffs' motion premature. For instance, the entry of a protective order has now mooted at least one issue Plaintiffs raise in this motion. Specifically, Plaintiffs request that Defendant re-designate Exhibit 1 [Doc. 154-1], which Plaintiffs filed in the public record with Defendant's consent. In light of the findings above, Exhibit 1 [Doc. 154-1], which is now part of the public record, no longer qualifies as Confidential Discovery Material. Plaintiffs also argue that Defendant should re-designate [Docs. 119-4 and 138-4], noting that the former is sealed but not the latter, despite being the same documents. After Plaintiffs filed the instant motion, however, the Court placed [Doc. 138-4] under seal given Defendant's claim that it contained attorney-client privileged information [See Doc. 166]. The Court has not yet made a ruling in this regard, and therefore, reviewing [Doc. 138-4] to determine whether such documents should be treated confidential is premature.

*3 Plaintiffs also argue that Defendant designated approximately 607 emails as confidential, and Defendant stands by its designations. During the hearing, Plaintiffs requested that the Court rule on the confidentiality designations with respect to [Docs. 119-4, 138-4 and 154-1], and then, Defendant can review its designation with respect to the 607 emails in light of the Court's ruling. At the heart of Plaintiffs' argument is that Defendant has abused the confidentiality designations. Again, at the time Plaintiffs filed their motion, the Court had not entered a protective order regarding the confidentiality of documents. The Court has now entered a modified version of Defendant's proposed protective order [Doc. 128-1]. In light of this modified version, the parties should determine whether any re-designations are appropriate. At this time, however, the Court DENIES WITHOUT PREJUDICE Plaintiffs' motion [Doc. 154] and declines to award attorney's fees based on this ruling.

As a final matter, the Court reminds the parties that they have a good faith obligation to appropriately designate documents. N.T. by & through Nelson v. Children's Hosp. Med. Ctr., No. 1:13CV230, 2017 WL 3314660, at *5 (S.D. Ohio Aug. 3, 2017) (citation omitted). The Court has modified Defendant's proposed order [Doc. 128-1] to include a requirement that the parties participate in a good faith meet and confer prior to seeking judicial review of any confidentiality designations. To the extent the modified protective order does not resolve the disputes relating to the 607 emails, the Court advises the parties that “chambers cannot operate as a full service litigation team.” Id. at *8 (quoting Premier Health Partners v. The Medical Ctr. at Elizabeth Place, No. 3:12-cv-00026 (S. D. Ohio March 4, 2014)). The Court encourages the parties to discuss how these disputes should be raised[4] and whether a broad challenge to pre-trial confidentiality is a worthwhile expenditure. Id. at *9.

II. CONCLUSION

For the reasons explained above, the Court GRANTS IN PART AND DENIES IN PART Defendant's Motion for Entry of Confidentiality and Protective Order [Doc. 127] and DENIES WITHOUT PREJUDICE Plaintiffs' Motion to Compel ‘Redesignated’ Discovery and for Fees and Expenses [Doc. 154].

IT IS SO ORDERED.

ENTER: