Key Takeaways

  • A protective order is a court-issued directive that safeguards individuals from harm, harassment, or unwanted contact.
  • Protective orders can apply in both civil (discovery/trade secrets) and personal (domestic violence, stalking, harassment) contexts.
  • Courts balance the need for open discovery with privacy, safety, and public interest when issuing protective orders.
  • Protective orders differ from restraining orders: the former protects against harm, while the latter often governs property or temporary legal rights.
  • Types of protective orders may include emergency, temporary ex parte, and final (lasting up to two years or longer in severe cases).
  • Violating a protective order can result in criminal charges, fines, and imprisonment.

PROTECTIVE ORDER

In litigation, an order that prevents the disclosure of sensitive information except to certain individuals under certain conditions. In a domestic dispute, an order that prevents one party from approaching another, often within a specified distance.

Any order issued by a court which is meant to protect a person from harm or harassment.

A protective order is commonly used to protect a party or witness from unreasonable or invasive discovery requests (for example, harassing questions in a deposition, or an unnecessary medical examination). Less often, a temporary restraining order issued to prohibit domestic violence is referred to as a protective order.

Types of Protective Orders

Protective orders come in several forms depending on the urgency and nature of the threat:

  • Emergency Protective Order (EPO): Often issued immediately after an arrest for family violence or stalking, usually lasting 31–91 days.
  • Temporary Ex Parte Protective Order: Granted without the alleged offender present, valid for up to 20 days and renewable.
  • Final Protective Order: Typically lasts up to two years but may extend longer if severe violence or repeated violations occur.

Unlike restraining orders, which often relate to property or family law disputes, protective orders directly address safety concerns such as violence, harassment, or threats

Who Can Request a Protective Order

Individuals who may seek a protective order include:

  • Victims of family or dating violence
  • Survivors of sexual assault, stalking, or human trafficking
  • Parents or guardians on behalf of minors
  • Prosecutors or attorneys acting in the public interest

The applicant must typically show evidence of recent harm or credible threats. Courts evaluate the request to determine whether immediate protection is necessary

Pre-Trial Discovery

The state has two substantial interests in regulating pre-trial discovery: one is to facilitate the search for truth and promote justice (Hickman v. Taylor (1947) 329 U.S. 495, 507); the other is to protect the legitimate privacy interests of the litigants and third parties. (Seattle Times Co. v. Rhinehart (1984) 467 U.S. 20, 34-35) The interest in truth and justice is promoted by allowing liberal discovery of information in the possession of the opposing party. (Id. at p. 34.) The interest in privacy is promoted by restricting the procurement or dissemination of information from the opposing party upon a showing of "good cause" (F.R.C.P. rule 26, subd. (c); Code Civ. Proc., section 2031, subd. (e).) (See generally Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 377.) "The trial court is in the best position to weigh fairly the competing needs and interests of parties affected by discovery." (Seattle Times Co. v. Rhinehart, supra, 467 U.S. at p. 36.)

Protective Orders in Domestic Violence and Stalking Cases

Beyond regulating discovery in civil litigation, protective orders are widely used to shield individuals in family violence or stalking cases. Courts may order the restrained person to:

  • Avoid contact with the applicant (directly or indirectly)
  • Stay a certain distance from the applicant’s home, workplace, or school
  • Surrender firearms
  • Refrain from harassment, threats, or intimidation

These measures are designed to prevent escalation and provide immediate safety for the victim while legal proceedings continue.

Secrecy Agreements and Protective Orders

Secrecy agreements and protective orders impair the public's access to discovery records as well as the parties' First Amendment right to disseminate information to the public. (Seattle Times Co. v. Rhinehart, supra, 467 U.S. 20 at pp. 31-32.) Because the judicial process is frequently the avenue by which the public and regulatory agencies learn of significant health and safety hazards, blocking this avenue may prove detrimental to the public well-being. For this reason, courts frequently consider the public interest when determining whether good cause exists for a protective order. (See, e.g., Brown & Williamson Tobacco Corp. v. F.T.C. (6th Cir. 1983) 710 F.2d 1165, 1180 [unsealing documents because information relevant to public health]; and see discussion in Timmons, Protective Orders in Products Liability Litigation: Striking the Proper Balance (1991) 48 Wash. & Lee L. Rev. 1503, 1528.)

Enforcement and Penalties for Violation

Violating a protective order carries serious legal consequences. Depending on the jurisdiction, violations may result in:

  • Arrest without a warrant if law enforcement confirms a violation
  • Criminal charges, often classified as misdemeanors but escalating to felonies for repeat violations
  • Jail time and fines
  • Extension or modification of the protective order

These penalties emphasize the court’s commitment to ensuring compliance and protecting vulnerable individuals.

Trade Secrets and Proprietary Information

A manufacturer has a legitimate interest in protecting its trade secrets and other confidential proprietary information. The relevancy and reliability of information obtained during discovery has not been subjected to judicial scrutiny and might never be disclosed at trial. Clearly, the release of inaccurate, unreliable or misleading information could unfairly damage the manufacturer's reputation and alarm the public unnecessarily. (Seattle Times Co. v. Rhinehart, supra, 467 U.S. at p. 35.)

In Seattle Times Co. v. Rhinehart, supra, the Court addressed the issue of whether a protective order restricting a party from disseminating information it obtained during discovery violated that party's First Amendment Rights. After recognizing and discussing the interests of the restricted party and the public in disseminating the information and the interest of the party which produced the information in keeping it confidential, the Court held "where, as in this case, a protective order is entered on a showing of good cause . . . , is limited to the context of pretrial civil discovery, and does not restrict the dissemination of the information if gained from other sources, it does not offend the First Amendment." (467 U.S. at p. 37.)

"Presumably, due to its temporary nature, [and] its infringement upon the public right to know, . . . a sealing or confidentiality order in a civil case is always subject to continued review and modification, if not termination, upon changed circumstances." (Mary R. v. B & R. Corp. (1983) 149 Cal.App.3d 308, 317.) See also American Tel. & Tel. Co. v. Grady (7th Cir. 1979) 594 F.2d 594, 597 ["exceptional considerations warranting the alteration of an agreed protective order exist in the present case."]

California imposes no confidentiality requirements with respect to information obtained through discovery except upon motion for good cause shown. (See, e.g., Code Civ. Proc., section 2031, subd. (e).) Thus, in the absence of an order obtained on a showing of good cause, nothing in California law would prohibit a party sharing documents obtained through discovery with a nonparty.

Balancing Public Interest and Confidentiality

While protective orders often safeguard privacy and proprietary information, courts must also weigh the public’s right to know. In cases involving public health, consumer safety, or significant government interest, judges may limit the scope of confidentiality. For example, courts have ordered the unsealing of documents when the information was deemed critical to public safety.

This balancing approach ensures protective orders are not misused to hide misconduct or prevent necessary transparency.

Frequently Asked Questions

  1. What is the difference between a protective order and a restraining order?
    A protective order safeguards individuals from harm or harassment, while a restraining order often addresses property or temporary family law issues.
  2. How long does a protective order last?
    An emergency or temporary order may last days to weeks, while final protective orders typically last up to two years, extendable in serious cases.
  3. Who can file for a protective order?
    Victims of family violence, sexual assault, stalking, or their representatives may file. Prosecutors may also request them in the public interest.
  4. What happens if someone violates a protective order?
    Violations can lead to arrest, criminal charges, fines, imprisonment, and extension of the order.
  5. Can protective orders cover both individuals and business interests?
    Yes. In civil litigation, they protect trade secrets or sensitive information, while in personal cases, they protect individuals from threats or violence.

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