Blawgletter wonders whether a district court may, via a protective order, bar lawyers from using documents and information, which they did not obtain in discovery, to do things necessary to represent their clients. The Eleventh Circuit today held insupportable an effort so to restrict lawyers in a civil case.  Romero v. Drummond Co., Inc., No. 06-13058 (11th Cir. Mar. 14, 2007).

The court concluded that a protective order limiting "extrajudicial" statements did not allow a finding that the lawyers violated the order by filing motions and declarations in support of the motions. The court disagreed that the order clearly prohibited the lawyers’ conduct, noting that the order did not ban statements in court filings, to which the public presumptively has access. It accordingly vacated the lawyers’ conviction of criminal contempt and reversed the order barring public access to the materials.

Blawgletter heartily agrees that protective orders — which aim at preventing improper use of documents that a party receives through discovery — have no business circumscribing lawyers’ use of documents that their clients didn’t receive in discovery, either because the clients possessed the documents pre-litigation or because the lawyers obtained them outside discovery after litigation began.  The Eleventh Circuit appears to hold the same opinion.

Barry Barnett

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