03/26/2025
BEWARE THE PROTECTIVE ORDER
In med mal and personal injury cases, we often see defendants push for blanket protective orders over documents they label “confidential” or claim as trade secrets. Even when they insist they’re not limiting the plaintiff’s use, they routinely ask courts to block public access—often to policies and procedures from hospitals, elevator companies, or other regulated entities.
That should raise a red flag for every plaintiff’s lawyer.
These orders can have lasting consequences—not just for your client, but for future plaintiffs. We must push back, especially when the defense can’t show a clear, specific need.
Illinois courts disfavor blanket protective orders. Transparency is also a core public policy. The Clerks of Courts Act presumes public access, and the Illinois Supreme Court has affirmed that right under the First Amendment. Any restriction must serve a higher interest and be narrowly tailored. At minimum, protective orders must be the least restrictive means available.
I’ve challenged these orders—especially when used to hide more than the defense lets on. In one recent case, a major provider swore under oath that it had no policies in any department where the plaintiff was treated.
A simple FOIA request to the Illinois Department of Public Health proved otherwise.
Instead of addressing the false statement, the defendant moved for a protective order—not just to shield the records we uncovered, but to block anything else we might find. They claimed trade secret protections. They insisted they weren’t trying to block use in this case—just to prevent public access (or, as defense counsel put it, to keep them from being shared with “other plaintiffs’ attorneys on a listserv”).
The court rejected that argument. Documents in the public domain don’t become private just because the defense wants the cat back in the bag.
This is especially true where the defendant is a licensed ASTC provider receiving Medicare or other public funds. You can’t take public money and dodge the transparency requirements that come with it.
At its core, this was about breaking the informational advantage. When we moved to compel, the court—understandably—asked what it could do in the face of a sworn denial. Only after we filed our reply with FOIA documents did the court order compliance. And just like that, a stack of policies appeared.
Thanks to public access laws, we obtained policies directly tied to the care at issue. But not every plaintiff will be so fortunate.
We must stay vigilant. Protective orders shouldn’t be used to bury the truth or shield bad practices from scrutiny.
Public access laws give us the tools to challenge these tactics. Use them. Push back. Tear down the walls defendants rely on to block discovery and control the record. That advantage is slipping—let’s make sure it stays that way.
This isn’t just about one case. It’s about leveling the field—for this client, and the next.
For more about Principal Attorney Elise A. Waisbren and Women's Injury Law Group, visit https://womensinjury.law or contact us at 773-756-5716 or [email protected].