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Dissenting Statement of Commissioner Ann Marie Buerkle on the “Litigation Guidance and Recommended Best Practices for Protective Orders and Settlement Agreements in Private Civil Litigation”

November 22, 2016

The Commission voted 3-2 to approve the “Guidance” relating to protective orders in private litigation.  I generally welcome any additional safety information the agency can get, but I have serious concerns about how this Guidance will be portrayed to courts considering requests for protective orders.  I am particularly concerned about our ability to protect any information that comes our way because of it. 

Despite my concerns, I was prepared to approve publication of the Guidance as a proposal for public comment.  Unfortunately, my colleagues on the other side of the aisle refused to accept that approach.  Therefore, I could not vote for adoption of the Guidance.

Although the Commission declined to allow public comment on this Guidance, I am still interested in hearing any thoughts and reactions from our stakeholders.  Please provide comments to me by e-mail at


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