Rule 404.Protective Order

Rule 404 is the shield against discovery.

Who may move, and where

Any party or any person from whom discovery is sought — so a nonparty served with a subpoena may move too. The motion goes to the court where the action is pending, or, on matters relating to a deposition, the court where the deposition will be taken.

The certification is a precondition

The motion must include a certification that the movant has in good faith conferred or attempted to confer with the other affected parties to resolve the dispute without court action. Rule 417(a) defines conferring for this purpose — speaking directly, in person or by telephone. Email and voicemail do not count.

What the court may order

For good cause, to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, the court may make one or more of eight orders:

• forbidding the disclosure or discovery;
• specifying terms, including time and place;
• prescribing a different method than the one the requesting party chose;
• forbidding inquiry into certain matters, or limiting the scope;
• designating who may be present while discovery is conducted;
• requiring a deposition to be sealed and opened only on court order;
• protecting a trade secret or other confidential research, development or commercial information;
• requiring simultaneous filing in sealed envelopes, opened as the court directs.

The fifth is worth noting in family cases: designating who may be present is how a court keeps a new partner, a parent, or an interested relative out of a deposition.

Where else it operates

Rule 412(d)(4)(B) lets a court terminating a deposition limit its scope and manner as provided in Rule 404. Rule 417(c)(5) lets a court denying a motion to compel issue any protective order authorized here. And Rule 417(f)(2) makes a pending Rule 404 motion the only excuse for not responding to discovery a party considers objectionable.