Strategic Use of Protective Orders in Document Production

What is a protective order, and what can it do?

Under Minn. R. Civ. P. 26.03, a party, or the person from whom discovery is sought, may move for a protective order, and for good cause shown the court where the action is pending may make any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense; on deposition matters, the court in the district where the deposition is to be taken may alternatively make that order. What that showing requires is covered in the section titled “What must you show to get a protective order?”

What the order can cover

Rule 26.03 lists several forms of protection (Minn. R. Civ. P. 26.03). Among them:

• The court may order that discovery be had only on specified terms and conditions for the disclosure or discovery, which may include a designation of the time or location or the allocation of expenses (Minn. R. Civ. P. 26.03).
• The court may order that a trade secret or other confidential research, development, or commercial information not be disclosed, or be disclosed only in a designated way (Minn. R. Civ. P. 26.03). The section titled “Protecting trade secrets in document production” explains how this applies to your business information.
• The court may require the parties to file specified documents or information simultaneously, enclosed in sealed envelopes, to be opened as directed by the court (Minn. R. Civ. P. 26.03).

Under Minnesota Rule of Civil Procedure 26.03(a), a party, or the person from whom discovery is sought, may move for a protective order (Minn. R. Civ. P. 26.03). On motion by a party or by the person from whom discovery is sought, and for good cause shown, the court where the action is pending may make any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. On deposition matters, the court in the district where the deposition is to be taken may alternatively make that order.

What happens if the motion fails

Asking for protection carries a consequence you should weigh before you file (Minn. R. Civ. P. 26.03). If the court denies a motion for a protective order in whole or in part, the court may, on such terms and conditions as are just, order any party or person to provide or permit discovery. A narrowly framed request tied to the documents you actually need to protect keeps that outcome in view as you plan your discovery strategy. For a broader look at how discovery fits into a dispute, see the litigation practice area and 20 FAQ About Interrogatories.

What must you show to get a protective order?

Who may bring the motion, and in which court

Under Minn. R. Civ. P. 26.03, the motion may come from a party or from the person from whom discovery is sought, and it goes to the court in which the action is pending or, on matters relating to a deposition, alternatively to the court in the district where the deposition is to be taken. When a discovery request reaches your company, identify which role you hold and where any deposition is scheduled before you decide how to respond. If you are early in a case, Your Minnesota Business Was Served With a Lawsuit: The First 21 Days walks through the first decisions you will face.

Who carries the good-cause burden

Applying the Rules of Civil Procedure as adopted before the 2013 amendments, the Minnesota Supreme Court held in TC/American Monorail, Inc. v. Custom Conveyor Corp., 840 N.W.2d 414 (Minn. 2013) that when a party opposes a request to take a deposition to preserve the trial testimony of an unavailable, out-of-state witness (an out-of-state witness not subject to subpoena who has affirmatively stated that he or she is unwilling to come to Minnesota to testify at trial), and the deposition is not specifically covered by a scheduling order deadline, the opposing party may move under Rule 26.03 for a protective order to preclude or otherwise limit the deposition, and that motion places the burden on the opposing party to show good cause for denying the request.

If the dispute centers on written questions, 20 FAQ About Interrogatories covers how those requests work.

The conferral certification for motions to compel

Under Minn. R. Civ. P. 37.01, a motion under Rule 37.01(b)(2) to compel a discovery response must include a certification that the movant has in good faith conferred, or attempted to confer, with the person or party failing to make the discovery, in an effort to obtain the information or material without court action.

Whichever side files first, a documented attempt to work out the dispute with opposing counsel gives you a written record of the specific harm you want to avoid and often narrows what you need the court to decide. For how protective order disputes fit into the broader course of a case, see the litigation practice area.

Stipulated protective orders and court approval

Unless the court directs otherwise, Minnesota Rule of Civil Procedure 29 lets you and the opposing party modify by stipulation the procedures governing discovery or the limitations placed on discovery, and agree that depositions be taken before any person, at any time or place, on any notice, and in any manner, except that a stipulation extending the time to respond to discovery under Rules 33, 34, and 36 may be made only with the court’s approval if it would interfere with any time set for completing discovery, for hearing a motion, or for trial (Minn. R. Civ. P. 29).

When the court has to approve

Watch the deadline exception closely: under Minn. R. Civ. P. 29, if a stipulation extending your time to respond to discovery under Rules 33, 34, and 36 would interfere with any time set for completing discovery, for hearing a motion, or for trial, it may be made only with the court’s approval. If your scheduling question involves interrogatory answers, 20 FAQ About Interrogatories walks through how those responses work.

Confidentiality agreements can also go to the court for entry as an order (Star Tribune v. Minnesota Twins Partnership, 659 N.W.2d 287 (Minn. Ct. App. 2003)). If the other side will not agree to terms at all, the motion route is covered under the heading “What must you show to get a protective order?”, and the terms worth raising are covered under “What to negotiate in a stipulated protective order.”

How a Rule 29 stipulation can be enforced

Little held that a stipulation under Rule 29 is the functional equivalent of a court order for purposes of sanctions under Rule 37.02, because the Rule 29 stipulation made a Rule 35 order unnecessary to assure the plaintiff’s presence at the independent medical examination, so a voluntary discovery agreement made as a Rule 29 stipulation can be enforced with Rule 37.02 sanctions.

Among other considerations, Little suggests it is worth documenting an agreed discovery term as a Rule 29 stipulation, because that is the form the court held enforceable with Rule 37.02 sanctions (Little ex rel. Nash v. Miklya, 403 N.W.2d 228 (Minn. 1987)). Contempt and other tools for a violated protective order are covered under “Enforcing a protective order and sanctions for violations,” and the broader litigation picture is on the litigation practice area page.

What to negotiate in a stipulated protective order

When you negotiate a stipulated protective order, the terms that matter most are how many designation tiers you have, who sits on each access list, what the receiving side may do with your documents, and what happens to those documents when the case ends. Opposing counsel will often send a draft first. Treat that draft as an opening position, not a standard text, and mark it up with your own business in mind.

Designation tiers

Start by deciding how many levels of protection you actually need. Many orders use two: an ordinary confidential tier and a stricter tier for material that would hurt you if a competitor saw it. Before you agree to a structure, list the categories of documents you expect to produce, such as pricing, customer lists, margins, product plans, and personnel files, and sort each one into a tier. That exercise shows you whether the proposed tiers fit your records or leave gaps. The section titled “When is an attorneys’ eyes only tier justified?” explains what supports the stricter level.

Ask for clear definitions of each tier written in terms of the information itself, not the label stamped on it. Vague definitions invite fights over every page and make it harder for your own review team to stay consistent.

Access lists

For each tier, spell out by role who may see the material. Typical categories include outside counsel and their staff, a limited number of named in-house people, retained consultants, court reporters, and the court. Pay close attention to in-house access. If the other side is a competitor, press to keep its business decision-makers off the list for your most sensitive tier, and ask that any in-house person who gets access be identified by name in advance.

Ask that the other side disclose any consultant before sharing your material, so you have a chance to raise a concern if that person has ties to a competitor. Ask also that every person on an access list sign an acknowledgment agreeing to the order’s terms before seeing anything.

Use limits

Negotiate a plain statement that produced material may be used only for this case, and not for business planning, other lawsuits, regulatory complaints, or marketing. If you are in more than one dispute with the same party, decide early whether you want documents shared across those matters or walled off, and write that choice into the order. Address depositions too: agree on how testimony about protected documents will be designated and who may stay in the room while it is discussed.

Return or destruction at the end of the case

Agree on what happens to your documents when the case is over. Your choices usually include return, destruction, or a mix, along with a written confirmation from the receiving side that it has complied. Decide whether outside counsel may keep an archival set of pleadings and work product, and if so, make sure that set stays subject to the same confidentiality terms. Do not overlook copies held by consultants and vendors, which are easy to forget at the close of a long case.

Other terms worth raising

A workable order also covers how to challenge a designation, how to correct a missed designation, and how to handle privileged documents produced by mistake. Those topics have their own sections on this page: “Challenging designations or modifying the order” and “Clawing back privileged documents produced by mistake.” Raising them during negotiation, rather than after a dispute arises, keeps the order usable. How you set up your document review affects every one of these terms, as the section titled “Organizing review and production for consistent designations” describes.

If you have just been sued and discovery is approaching, the steps in Your Minnesota Business Was Served With a Lawsuit: The First 21 Days and the Evidence Preservation Order Checklist can help you prepare before these negotiations begin. For more on managing a business dispute, see the litigation practice area.

When is an attorneys’ eyes only tier justified?

Among the orders available under Minn. R. Civ. P. 26.03, the court may direct that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way.

A Minnesota district court has broad discretion under Rule 26.03 to fashion protective orders and to order discovery only on specified terms and conditions, as the Minnesota Supreme Court explained in In re Polaris, Inc., 967 N.W.2d 397 (Minn. 2021). Under Minnesota Rule of Civil Procedure 26.03(a), a party, or the person from whom discovery is sought, may move for a protective order. On deposition matters, the court in the district where the deposition is to be taken may alternatively make that order. Under Minn. R. Civ. P. 26.03, the court may issue a protective order only on motion by a party or by the person from whom discovery is sought, only for good cause shown, and only as justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense; the court is the one where the action is pending or, for deposition matters, the court in the district where the deposition is taken. The section titled “What must you show to get a protective order?” walks through that burden in full.

What supports the stricter tier in practice

Tie the request to concrete categories of information, such as current pricing, customer lists, margins, source code, or product roadmaps, rather than to your documents as a whole. Name who on the other side would see the material under ordinary confidentiality, such as an in-house manager who sets competing prices or a former employee now working for a rival, and explain what that person could do with it.

Keep the tier narrow. If you designate routine correspondence as attorneys’ eyes only, you invite a dispute over every designation and you weaken your credibility for the documents that truly need the protection. The section titled “What to negotiate in a stipulated protective order” covers how to structure access lists for each tier, and the section titled “Challenging designations or modifying the order” explains what happens when the other side pushes back.

If you were recently served, raise the competitor-access issue early, alongside the other steps in Your Minnesota Business Was Served With a Lawsuit: The First 21 Days, so that your most sensitive documents are not produced before a tier exists to hold them.

Protecting trade secrets in document production

To protect a trade secret in document production, you may move for a protective order in the court in which the action is pending or, on matters relating to a deposition, in the court in the district where the deposition is to be taken (Star Tribune v. Minnesota Twins Partnership, 659 N.W.2d 287 (Minn. Ct. App. 2003)). For good cause shown, and where justice requires it to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, the court may order that a trade secret or other confidential research, development, or commercial information not be disclosed, or be disclosed only in a designated way.

The Minnesota Supreme Court has recognized in In re Polaris, Inc., 967 N.W.2d 397 (Minn. 2021) that a district court has broad discretion under Rule 26.03 to fashion protective orders and to order discovery only on specified terms and conditions. The practical terms worth proposing are covered in the section titled “What to negotiate in a stipulated protective order.”

When your case is a trade secret case

If your lawsuit is an action under Minnesota’s Uniform Trade Secrets Act, Minn. Stat. § 325C.05 requires the court to preserve the secrecy of an alleged trade secret by reasonable means. Those means may include granting protective orders in connection with discovery, holding in-camera hearings, sealing the records of the action, and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval.

When your business is a non-party served with a subpoena

Your business does not need to be a party to face a demand for its confidential records. Under Minn. R. Civ. P. 45.03(c)(2)(A), if a subpoena requires disclosure of a trade secret or other confidential research, development, or commercial information, the court may, to protect a person subject to or affected by the subpoena, quash or modify it.

Whether you are a party or a non-party, identify which documents hold your trade secrets before any production begins, so you know what to ask the court to protect. For a broader view of how discovery fits into a commercial dispute, see our litigation practice overview, and if your company has just been sued, start with Your Minnesota Business Was Served With a Lawsuit: The First 21 Days.

Handling personal data and restricted identifiers

You, not the court, are responsible for keeping restricted identifiers out of the documents you file: under Minn. Gen. R. Prac. 11.02, a person who files a document or record with a Minnesota court is solely responsible for making sure it contains no restricted identifiers, except as Rule 11.02(a) permits, and the court administrator will not review each record for compliance, though the administrator may take any action consistent with Rule 11.05. Every filing also counts as your certification that the filed documents contain no restricted identifiers, except as Rule 11.02(a) permits. When you file non-public documents in a public case type, you are solely responsible for identifying those documents and designating them as non-public (Minn. Gen. R. Prac. 11.03).

In a Minnesota court case, restricted identifiers of any person or legal entity (complete or partial Social Security, employer identification, or other taxpayer identification numbers, and financial account numbers other than the last four digits of a financial account number that is not also a taxpayer identification number) may not appear in any document or other record filed with the court unless they are germane and necessary for the court’s consideration of the issues then before it (Minn. Gen. R. Prac. 11.02). If it is necessary to provide them, they must be submitted either on a separate Confidential Information Form 11.1 as published by the state court administrator or on a non-public document submitted in accordance with Rule 11.03.

This matters most when documents you received in discovery become exhibits. Before any exhibit leaves your office, have someone read it page by page for personal data and other sensitive details, and coordinate that review with the steps in the section titled “Are produced documents public, and how do you file under seal?” The broader litigation context is collected on the litigation practice hub.

What happens if a restricted identifier slips through

Under Minn. Gen. R. Prac. 11.05, if the court administrator discovers that a document containing a restricted identifier or other non-public information was not submitted in the confidential manner the rule requires, the administrator must restrict public access to the document pending redaction or court order, and must direct you, within 3 days, either to serve and file a properly redacted filing (including any necessary cover sheet and any prescribed fee, plus a motion requesting relation-back if you want the resubmitted filing to keep the original filing date) or to file a motion for relief from the court. The court may also impose any sanctions it finds appropriate for your non-compliance (Minn. Gen. R. Prac. 11.05).

A correction cycle on a tight motion schedule costs time and attention you would rather spend on the merits. Treating the pre-filing review as a fixed step in your process, rather than a last-minute check, keeps a protected document from becoming a public problem.

Are produced documents public, and how do you file under seal?

In Minnesota district court, a person may submit a document for filing as a confidential document or a sealed document only if one of three circumstances exists: (a) the court has issued an order permitting that particular document or class of documents to be filed under seal or as confidential; (b) the rule or any applicable court rule, court order, or statute expressly authorizes or requires filing under seal or as confidential; or (c) the filer files a motion for leave to file as confidential or under seal no later than the time the document is submitted (Minn. Gen. R. Prac. 11.04). The court may also require the filing party to specify the authority for asserting that a filing is confidential or sealed. A document submitted electronically as confidential or sealed must also meet the additional requirements of Rule 14.06. For this purpose, the terms “confidential document” and “sealed document” have the meanings set out in Rule 14.01.

Your designation duties when you e-file

If you are a Registered User electronically filing a document that is not accessible to the public in whole or in part under the Rules of Public Access to Records of the Judicial Branch or other applicable law, court rules, or court order, you are responsible under Minn. Gen. R. Prac. 14.06 for designating that document as confidential or sealed in the E-Filing System before you transmit it to the court. When you file, you must separate all non-public documents from public documents. If a document you designate as confidential or sealed is not already inaccessible to the public under those access rules or other applicable law, court rules, or court order, you must seek advance approval from the court before you transmit it for filing.

When you are not seeking in camera review, a document to be filed as confidential or under seal may be filed in paper form if the court requires or permits it, but your motion asking to file that document in paper form as confidential or under seal must itself be filed and served electronically under Minn. Gen. R. Prac. 14.06.

If the court disagrees with your designation

After reviewing a filing, the court may change the designation of any document that was incorrectly designated as confidential or sealed, and it must give prompt notice of the change to the person who filed the document, under Minn. Gen. R. Prac. 11.04. Treat each designation you make at filing as one you may need to defend, and keep your reasons for it in your file.

For how restricted identifiers and other non-public data must be kept out of public filings, see the section titled “Handling personal data and restricted identifiers.”

Clawing back privileged documents produced by mistake

Unless a court order entered under the rules limits discovery differently, if you produce information in Minnesota civil discovery that is subject to a claim of attorney-client privilege or work-product (trial-preparation) protection, you may notify every party that received it of your claim and its basis. Unless otherwise limited by court order in accordance with the rules, once notified, the receiving party must promptly return, sequester, or destroy the specified information and any copies it has, and may not use or disclose it until the claim is resolved, under Minn. R. Civ. P. 26.02.

What happens after you send the notice

The claw-back procedure in Minn. R. Civ. P. 26.02 also sets duties on both sides, again unless a court order entered under the rules limits discovery differently (In re Polaris, Inc., 967 N.W.2d 397 (Minn. 2021)). After your notice, the receiving party may promptly present the information to the court under seal for a ruling on your claim. If that party disclosed the information before your notice reached it, it must take reasonable steps to retrieve it. Unless otherwise limited by court order in accordance with the rules, you, as the producing party, must preserve the information until the claim is resolved.

In practice, your notice should identify each document precisely and explain why the privilege or protection applies, because the receiving party’s duties attach to the specified information (Minn. R. Civ. P. 26.02). Keep your own copy intact: you will need it if the dispute goes to the court. If your business is new to litigation, Your Minnesota Business Was Served With a Lawsuit: The First 21 Days covers the early steps that shape how your production is handled.

Building privilege terms into a court-approved order

According to the 2007 Advisory Committee Comment to Minnesota Rule of Civil Procedure 16, the court’s pretrial order under Minn. R. Civ. P. 16.02 may record the court’s approval of the parties’ agreements about privilege claims, and the rule specifically contemplates that parties may let documents be reviewed or sampled so the requesting party can assess its reasonable need for further production, without prejudice to any privilege claims. When you negotiate terms with opposing counsel, as discussed in “What to negotiate in a stipulated protective order,” consider asking the court to approve your privilege agreement so its terms appear in an order rather than only in correspondence.

Review by an appellate court

The Minnesota Supreme Court held in In re Polaris, Inc., 967 N.W.2d 397 (Minn. 2021) that Minnesota appellate courts have jurisdiction to consider a petition for a writ of prohibition challenging a district court’s denial of a claw-back request made under Minn. R. Civ. P. 26.02(f)(2). If the district court refuses to return a document you believe is privileged, that ruling is not necessarily the last word.

Organizing review and production for consistent designations

You get consistent confidentiality designations by settling the designation rules for each category of document before review begins, then structuring the review so every reviewer applies those rules the same way. When one copy of a pricing spreadsheet goes out marked confidential and a near-identical copy goes out unmarked, you weaken your position on both and give the other side an easy argument. Planning the workflow in advance keeps your markings defensible and limits how much sensitive material leaves your control.

Write a designation guide before anyone opens a document

Translate your business records into the tiers your order uses. List the categories you expect to collect (pricing models, customer lists, supplier terms, product specifications, personnel files, routine correspondence) and assign each one a tier, with two or three concrete examples per category. Use the exact tier names from the order so the stamps on your documents match its language. If you are still shaping those tiers, the section titled “What to negotiate in a stipulated protective order” covers the choices to raise with opposing counsel. Give the guide to every reviewer, and route close calls to one person who decides them and adds the answer to the guide.

Start with a clean, organized collection

Consistent review depends on knowing where documents came from and which versions exist. Collect by custodian and source, and preserve the metadata that shows authorship and dates. The Evidence Preservation Order Checklist walks through organizing what you hold before review begins.

Designate families and duplicates together

Most inconsistency comes from the same content appearing in many places. Use deduplication, near-duplicate grouping, and email threading in your review platform so the same document receives the same mark everywhere it appears. Review an email and its attachments as a family, and settle in your guide whether the family takes the highest tier of any member or each item is marked on its own.

Run separate passes for privilege and personal data

Ask reviewers to flag potentially privileged material and personal identifiers as distinct issues from confidentiality. A document can be confidential, privileged, and full of employee data all at once, and each issue calls for a different response. Route privilege flags to a second-level reviewer, and send personal data to a redaction workflow. The sections titled “Clawing back privileged documents produced by mistake” and “Handling personal data and restricted identifiers” explain how those issues are handled once documents leave your hands.

Keep a designation log

Record the production volume, Bates range, assigned tier, and the guide category that supports each designation. If the other side questions a marking, you can show the reasoning quickly and consistently, which matters when you reach the issues covered in “Challenging designations or modifying the order.” The log also tells you, months later, exactly what you produced and how you marked it.

Check the work before it goes out

Before each production, sample documents from every tier and confirm the stamps on the images match the designation fields in the load file. Confirm that spreadsheets and other native files carry their tier in the file name or slip sheet, since a stamp cannot be printed on them. Have a senior reviewer read every document in your most restrictive tier.

Resist marking everything at the highest tier

Blanket designations feel safe but cost you credibility. When everything is marked highly sensitive, the documents that truly need protection blend in with the rest, and your own team faces extra friction every time it needs to use routine material. Designate deliberately, and the markings you defend will be ones worth defending. For a broader view of how discovery fits into a business dispute, see the litigation practice area.

Enforcing a protective order and sanctions for violations

If the other side misuses documents you produced under a protective order, you can ask the court to enforce the order through civil contempt, but under Sehlstrom v. Sehlstrom, 925 N.W.2d 233 (Minn. 2019), the court can do so only if the order clearly defined the acts the alleged contemnor was required to perform.

Violating a protective order as constructive contempt

Under Minn. Stat. § 588.01, subd. 3, constructive contempts are those not committed in the immediate presence of the court and of which the court has no personal knowledge, and among the acts that may give rise to one is disobedience of any lawful judgment, order, or process of the court. The same statute also lists misbehavior in office or other willful neglect or violation of duty by an attorney, and deceit or abuse of the court’s process or proceedings by a party to an action or special proceeding. A protective order violation usually happens away from the courtroom, in an email, a meeting, or a file share. Gather the emails, access logs, and copies that show who saw your documents, when, and for what purpose.

Penalties a court may impose

Under Minn. Stat. § 588.02, a court may punish a contempt by a fine, imprisonment, or both, but for a constructive contempt it may impose imprisonment or a fine exceeding $50 only if it appears that the contempt defeated or prejudiced the right or remedy of a party to the action or special proceeding. If you want the court to consider imprisonment or a fine exceeding $50, build a record showing how the violation defeated or prejudiced your right or remedy in the action, such as a competitor obtaining your pricing data or a customer list reaching the market.

Drafting the order so it can be enforced

Because Sehlstrom v. Sehlstrom, 925 N.W.2d 233 (Minn. 2019) requires that an order enforced through civil contempt clearly define the acts the alleged contemnor was required to perform, enforcement starts when the protective order is written. When you negotiate the terms covered in What to negotiate in a stipulated protective order, write each obligation as a specific act: who may view each tier of documents, the purposes for which they may be used, and what must happen to copies when the case ends. For how enforcement fits into the rest of a business dispute, see the litigation practice area.

Challenging designations or modifying the order

Asking the court to change the order

The Minnesota Supreme Court has stated in In re Polaris, Inc., 967 N.W.2d 397 (Minn. 2021) that a district court has broad discretion under Minn. R. Civ. P. 26.03 to fashion protective orders and to order discovery only on specified terms and conditions.

Time limits on relief from a final order

A motion under Minn. R. Civ. P. 60.02 for relief from a final judgment, order, or proceeding must be made within a reasonable time. If it rests on mistake, inadvertence, surprise, or excusable neglect; on newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial under Rule 59.03; or on fraud, misrepresentation, or other misconduct of an adverse party, it must be made no more than one year after the judgment, order, or proceeding was entered or taken. For a broader view of tracking deadlines from the start of a case, see Your Minnesota Business Was Served With a Lawsuit: The First 21 Days.

Before production begins, list the categories of documents you expect to produce, sort each one into a tier, and write a designation guide your reviewers can apply the same way every time. When opposing counsel sends a draft order, treat it as an opening position and mark it up with your own business records in mind, writing each obligation as a specific act. Keep a designation log so you can explain any marking quickly if it is questioned.