Non-compete and trade secret litigation inherently involves disclosure of confidential information. Plaintiffs argue that defendants took or used the plaintiff’s confidential information, and they often want the defendants to turn over their files for review. Defendants often complain that the plaintiffs are engaged in a fishing expedition or that they are entitled to review the plaintiff’s files in order to pressure test the trade secret claims.

Once the parties come to grips with the reality that they will have to exchange confidential information with their opponents in order to prosecute or defend the litigation, the reality sets in that this information could become part of the public record if it is filed with the court. It is at this time that their attorneys begin exploring the use of protective orders.