National Violent Offender

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.

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.)

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.)

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."]

Peace Order or Protective Order . . . which one?

Peace and protective orders are civil orders issued by a judge to prevent one person from committing certain acts against others. The personal relationship between the “ respondent” (person alleged to commit the prohibited act) and the victim (person to be protected) determines which kind of petition would be filed. Protective orders generally apply to people in domestic relationships. Peace orders apply to other relationships (dating, neighbors, co-workers, acquaintances, strangers).

You cannot qualify for both;

you must choose the one for which you would qualify.

If you are filing the petition for yourself, do any of these apply to you?

I am the current or former spouse of the respondent

I have lived in an intimate relationship with the respondent for at least 90 days during the past year

I am related to the respondent by blood, marriage, or adoption

I am the parent, stepparent, child, or stepchild of the respondent, and I have resided with the respondent for 90 days during the past year I have a child with the respondent

If you checked any of the above, you would file for a protective order. If you did not, you would file for a peace order.

If you believe a minor child or a vulnerable adult (an adult who cannot provide for his or her own daily needs) is in need of protection, you may file for a protective order for them if: -- one of the above boxes describes their relationship with respondent

and

-- you are related to the minor child or vulnerable adult

or

-- you reside in the same house with the minor child or vulnerable adult

What do you have to prove?

Once you determine the type of order for which you may qualify, you then must prove that one of the following acts occurred:

For a peace order:

- an act that caused serious bodily harm

- an act that placed the petitioner in fear of imminent bodily harm

- assault in any degree

- rape or sexual offense

- attempted rape or sexual offense

- false imprisonment

- criminal harassment *

- criminal stalking *

- criminal trespassing *

- malicious destruction of property*

* these acts apply only to a peace order.

For a protective order:

- an act that caused serious bodily harm

- an act that placed the petitioner in fear of imminent bodily harm

- assault in any degree

- rape or sexual offense

- attempted rape or sexual offense

- false imprisonment

How to apply for an Order

Step 1: Complete the correct petition

Petition for Protection (form CC/DCDV1) can be obtained from any circuit or District Court clerk or commissioner. A Petition for Peace Order (form DC/PO1) must be obtainedfrom a District Court clerk or commissioner. All forms are available at:www.courts.state.md.us/courtforms/(Click here to go to forms.)

Step 2: File the petition

During normal business hours, file the petition with a circuit or District Court clerk (District Court for peace orders). Once the petition is filed, you will then go to a courtroom to await a hearing. Step 2a:Interim Order

When courts are closed, District Court commissioners may issue Interim Peace and Protective Orders to last until a judge holds a temporary hearing. An interim order goes into effect once the respondent is served by a law enforcement officer.

Step 3: Appear for a temporary hearing

When you appear before a judge, you will be required to answer questions under oath. If the judge finds reasonable grounds to believe that the respondent committed the acts alleged in the petition against you, (and in the case of a peace order, is likely to do so again) a temporary order is granted. The order goes into effect once a law enforcement officer serves the respondent and generally lasts for seven days unless extended by a judge. Step 4: Appear for a final hearing

A final hearing is usually scheduled within seven days after the order is served. At the hearing, both parties may present evidence. However, if the respondent does not attend, the judge may still grant a final order if: --- At the trial the judge finds clear and convincing evidence that the respondent committed the alleged act against the petitioner, as defined under the law, (and in the case of a peace order, is likely to do so again); or

--- Instead of a trial, the respondent consents to the entry of a final order. A protective order may last up to one year, with a possible six-month extension; a peace order may last up to six months.

What will the Order do?

Peace and protective orders are intended to provide protection for the petitioner

and

other individuals named in the order. The respondent may be ordered to:

--- stop threatening or committing abuse

--- stay away from the petitioner’s home, place of employment or school

--- have no contact with the petitioner or others

A protective order may also:

--- award temporary use and possession of the home to the petitioner

--- award temporary custody of children to the petitioner

--- award temporary financial support

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