Protective orders require protection. They play a key role in the discovery process and are relied upon by courts and litigants to facilitate efficient discovery and protect the parties’ confidential information. The orders, however, are only as valuable as they are enforceable. If a party cannot fully trust that its information will be adequately protected, it will be less likely to cooperate in producing the information, thus leading to more discovery disputes and nullifying the benefits of protective orders. Courts play the primary role in enforcing protective orders through the issuance of sanctions.

Consider the situation of Arlin Valdez-Castillo. A housekeeper at the Hampton Inn, she was tasked with cleaning the rooms of the members of “Wildlife on Wheels,” agents of Busch Entertainment Corp. The agents had brought animals with them to the hotel, and the trauma resulting from having to clean up after the animals led Ms. Valdez-Castillo to file suit against Busch. The court issued a protective order under Rule 26,4 imposing stringent requirements on the plaintiff and counsel regarding the permissible use of materials that Busch had marked confidential. Ms. Valdez-Castillo’s attorney, freshly admitted to the bar, sent a copy of Busch’s confidential “Travel Protocol” to The Miami Herald; his copy, for whatever reason, had not been marked confidential. The information leaked, and Busch suffered harm. If Ms. Valdez-Castillo and her attorney violated the protective order, what recourse does the aggrieved corporation have?

One part of any such recourse might be court-ordered sanctions against the plaintiff and her attorney for violating the protective order. In the context of discovery, courts derive this sanctioning ability from two sources: the Federal Rules of Civil Procedure5 and, alternatively, the courts’ own inherent powers.6 This Comment argues that the current Federal Rules allowing for sanctions in response to violations of discovery orders are not applicable to the vast majority of protective orders in discovery. This interpretation, if adopted by courts, would be a significant change, considering that many courts have relied on the Rules as sanctioning authority for some time. Though an imperfect and temporary solution, inherent authority can work partially to fill in this gap in rule-based sanctioning authority and ease the transition from current practice. Ultimately, an amendment to the Federal Rules of Civil Procedure specifically granting sanctioning authority for protective order violations is preferable.

As past cases suggest, parties will often ground their motions for such sanctions on Rule 37(b) of the Federal Rules of Civil Procedure, which allows for “further just orders” when a party “fails to obey an order to provide or permit discovery.” Courts, however, have disagreed over whether these sanctions can be applied to Rule 26(c) protective orders, though the vast majority of courts have held that they can. The discrepancy largely stems from the debate over whether protective orders issued during discovery are discovery orders for purposes of Rule 37.

This Comment aims to resolve this disagreement, arguing that the text of the Rule—along with Advisory Committee Notes overlooked by every court that has analyzed the issue—suggests that Rule 37(b) sanctions may only be applied to a narrow set of protective orders. Thus, referring back to the example, this Comment argues that Busch could not justify a motion for sanctions under Rule 37(b). If Rule 37(b) is unavailable, Busch next might try to seek sanctions based on the court’s inherent sanctioning authority, which is not grounded in any statute or rule. This Comment ultimately argues that inherent authority is currently the proper mechanism by which courts should enforce protective orders.