Greyhound Rules for Protective Orders

A protective order is a means by which the court shields a party, deponent, or other natural person or organization from “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.”  In the context of litigation, it is often used by the parties to limit the scope, frequency or method of discovery against the other party.  What constitutes “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense” depends on the discovery method at issue, the applicable law, and the relevant facts.
In Greyhound Corp. v Superior Court, the California Supreme Court set out the factors to be considered in balancing the rights of parties seeking discovery against those of parties from whom information is sought and who seek protective orders. A court should apply the following factors to the particular facts and circumstances of a case, when asked to issue a protective order:

    • The purpose of the information sought;
    • The effect disclosure would have on the parties and the trial;
    • The nature of the objections urged by the party resisting disclosure; and
    • The court’s authority to make an alternative order that may grant partial disclosure, disclosure in another form, or disclosure only in the event that the party seeking the information undertakes certain specified burdens justified by the circumstances.

In addition, under Greyhound, a court should also consider certain general legal concepts in ruling on a motion for a protective order – just as they would any other discovery motion.  Those more general factors are as follows:

    • Legislation creating statutes and regulations in favor of liberal discovery must not be subverted under the guise of judicial discretion.
    • Discovery should be encouraged.
    • Disputed facts should be liberally construed in favor of discovery.
    • Statutory limitations on discovery should not be extended beyond that which is expressed.
    • Judicial discretion may not be exercised when not provided under statute.
    • When facts are undisputed, the issue becomes one of law and is not subject to discretion.
    • Whenever possible, a court should impose partial limitations rather than deny the sought after discovery.
    • Before requiring a party to bear the burden or cost of production, a court should weigh the importance of the information sought against the hardship that its production may entail, as well as the relative ability of the parties to obtain the information.

These guidelines continue to be important because they set out factors not specifically listed in the Civil Discovery Act.  And they do not contravene any express provisions of the statute providing for the different forms of discovery.