                                In the

      United States Court of Appeals
                  For the Seventh Circuit
                        ____________________
No. 17-1674
HERAEUS KULZER, GMBH,
                                                   Plaintiff-Appellant,

                                  v.

BIOMET, INC., et al.,
                                                Defendants-Appellees,
and

ESSCHEM, INC.
                                                  Intervenor-Appellee.
                        ____________________

          Appeal from the United States District Court for the
          Northern District of Indiana, South Bend Division.
            No. 3:09-cv-530 — Robert L. Miller, Jr., Judge.
                        ____________________

    ARGUED JANUARY 9, 2018 — DECIDED FEBRUARY 1, 2018
                        ____________________

   Before FLAUM, KANNE, and ROVNER, Circuit Judges.
    FLAUM, Circuit Judge. Plaintiff-appellant Heraeus Kulzer,
GmbH (“Heraeus”) brought this action in the Northern Dis-
trict of Indiana under 28 U.S.C. § 1782. That statute allows a
2                                                     No. 17-1674

party to file a petition in a federal district court to obtain dis-
covery for use in a foreign proceeding. Here, Heraeus sought
to obtain discovery from defendants-appellees Biomet, Inc.
and Biomet Orthopedics, LLC (collectively, “Biomet”) to use
in its trade secret misappropriation case against Biomet in
Germany. Biomet produced discovery subject to a series of
stipulated protective orders that limited Heraeus’s ability to
use or disseminate certain discovery materials outside of the
German proceeding and this § 1782 action.
    After obtaining discovery from Biomet and submitting it
to the German court, the German court ruled in Heraeus’s fa-
vor and enjoined Biomet from manufacturing or distributing
any products developed using the misappropriated infor-
mation. In its ruling, the German court cited and quoted sev-
eral documents that were produced in this § 1782 proceeding
and thus subject to the stipulated protective orders.
     Suspicious that Biomet was continuing to sell products
made with Heraeus’s trade secrets outside of Germany,
Heraeus subsequently brought actions in several other Euro-
pean countries to enforce the German judgment. Heraeus also
filed three motions to modify the district court’s protective or-
ders in this § 1782 action. In those motions, Heraeus asked the
district court to exclude the documents that the German court
relied on from the scope of the protective orders and/or to im-
pose restrictions on Biomet’s internal use of those documents.
Heraeus claims that these modifications are necessary so it
may submit those documents to the foreign tribunals presid-
ing over the European enforcement proceedings and protect
its trade secrets. The district court denied all three motions.
No. 17-1674                                                   3

    Because Heraeus failed to timely appeal the district court’s
first and second orders denying the requested relief, we con-
clude that we lack jurisdiction to review those orders now.
With respect to the district court’s third and final order, we
hold that the district court did not abuse its discretion by
denying Heraeus’s request to impose restrictions on Biomet’s
internal use of the documents it produced.
                          I. Background
   A. The Alleged Trade Secret Misappropriation
   Heraeus is a German company that specializes in the de-
velopment and production of bone cements used in joint re-
placement surgery. Heraeus began developing and producing
bone cements in the 1950s.
    In the early 1970s, Heraeus contracted with Merck KGaA
(“Merck”), a German pharmaceutical company, to distribute
its bone cements. To help Merck obtain regulatory approval
for its bone cements, Heraeus gave Merck confidential infor-
mation. Merck was contractually obligated to use that infor-
mation solely for the purpose of obtaining regulatory ap-
proval and to protect the information from disclosure.
    In 1997, Merck entered into a joint venture with Biomet. In
2004, Merck sold its joint venture shares to Biomet without
telling Heraeus. When Heraeus found out, it stopped deliver-
ing its bone cements to Biomet.
    When the distribution relationship between Biomet and
Heraeus ended in 2005, Biomet began manufacturing and
selling bone cements that directly compete with Heraeus’s
products. After dominating the bone cement market for fifty
years, Heraeus began losing its market share.
4                                                            No. 17-1674

   Heraeus sued Biomet in courts throughout Europe, alleg-
ing that Biomet developed its bone cements with Heraeus’s
proprietary information. Heraeus also claims that Biomet
used the allegedly misappropriated information to help Ess-
chem, Inc. (“Esschem”)—a chemical company in Pennsylva-
nia—create the copolymers that Biomet uses in its bone ce-
ments.
    B. The § 1782 Action
    On December 30, 2008, Heraeus sued Biomet in Germany
for trade secret misappropriation. Shortly thereafter, Heraeus
commenced this proceeding in the Northern District of Indi-
ana under 28 U.S.C. § 1782 to obtain discovery from Biomet. 1
In relevant part, that statute provides that “[t]he district court
of the district in which a person resides or is found may order
him to give his testimony or statement or to produce a docu-
ment or other thing for use in a proceeding in a foreign or in-
ternational tribunal.” 28 U.S.C. § 1782(a).
    The Indiana district court initially denied the petition, but
on appeal we reversed and remanded for the district court to
oversee and manage the discovery process. See Heraeus Kulzer,
GmbH v. Biomet, Inc., 633 F.3d 591, 599 (7th Cir. 2011) [herein-
after Heraeus I].
    C. Stipulated Protective Orders
   On remand, Biomet agreed to produce responsive discov-
ery materials pursuant to an amended protective order, which
was agreed to by the parties and entered by the district court.


    1 Heraeus also filed a §1782 proceeding against Esschem in the district
court for the Eastern District of Pennsylvania. In re Application of Heraeus
Kulzer GmbH, 2:09-mc-17-CMR (E.D. Pa. filed Jan. 29, 2009).
No. 17-1674                                                            5

In recognition of the “highly competitive” bone cement indus-
try, and to protect Biomet’s trade secrets, that protective order
allows Biomet to designate discovery materials as confiden-
tial. Once materials are designated as confidential, Heraeus
may only use them in the German proceedings and in this
§ 1782 action, and may only disclose them to authorized indi-
viduals specified in the protective order. The amended pro-
tective order states that it does not “prevent the Biomet Re-
spondents from disclosing or using in any manner or for any
purpose their own Confidential Information.”
    In August 2011, the district court allowed Esschem to in-
tervene to protect its interests because some of the discovery
materials produced contained communications between Ess-
chem and Biomet. After Esschem intervened, the parties
agreed to, and the district court entered, a second amended
protective order. That protective order allowed Heraeus to
use certain documents in the German proceedings provided
that the documents were treated as confidential by the Ger-
man courts.
    The district court periodically entered additional protec-
tive orders to address particular concerns as they arose. Each
successive protective order supplemented prior protective or-
ders. 2
    D. The German Judgment
    Meanwhile, Heraeus submitted the discovery it obtained
in this § 1782 proceeding to the German court as evidence to

    2 The court entered a third amended protective order in December
2011; a fourth amended protective order in February 2012; a fifth amended
protective order in August 2012; a sixth amended protective order in
March 2013; and a seventh amended protective order in September 2014.
6                                                          No. 17-1674

support its trade secret misappropriation claims against Bi-
omet. On June 5, 2014, the German court held that Biomet mis-
appropriated Heraeus’s trade secrets and used them to guide
Esschem in creating the copolymers that Biomet uses in its
bone cements. 3 In its ruling, the German court described and
quoted nine documents, which the parties refer to as the
“Cited Documents.” Those documents contain correspond-
ence between Biomet and Esschem employees about labora-
tory tests performed on some of Heraeus’s bone cement prod-
ucts. The German court determined that portions of this cor-
respondence contained Heraeus’s trade secrets. Accordingly,
it enjoined Biomet from manufacturing, offering, or distrib-
uting any bone cement products developed using the misap-
propriated information.
    E. European Enforcement Proceedings
    Heraeus claims that, despite the German court’s injunc-
tion, Biomet continues to sell bone cement products that were
made using misappropriated information in other European
countries. Accordingly, Heraeus filed proceedings in several
European countries—France, the Netherlands, Austria, Italy,
Belgium, Finland, Denmark, Norway, and the United King-
dom—to enforce the German judgment. 4




    3 The German Federal Supreme Court affirmed this judgment on June

16, 2016.
    4 Heraeus also filed another lawsuit against Esschem in the Eastern
District of Pennsylvania to stop the continued production of the copoly-
mers used in Biomet’s bone cements, which it claims Esschem continues
to produce and ship to Biomet in Europe. The district court presiding over
that case granted summary judgment to Esschem after finding that
No. 17-1674                                                           7

   F. The District Court Excludes the German Judgment
      from the Protective Orders’ Restrictions
    Because the German judgment described and quoted por-
tions of discovery materials that were subject to the protective
orders, Heraeus asked the district court to clarify whether the
German judgment was itself subject to the protective orders.
To the extent it was, Heraeus asked the district court to ex-
clude the German judgment from the scope of the protective
orders so it could use the judgment in the European enforce-
ment proceedings.
    The district court granted Heraeus’s motion on September
8, 2014. In doing so, it found “good cause for the continued
protection of Heraeus’s trade secrets and recogniz[ed]
Heraeus’s strong interest in enforcing the terms of the Judg-
ment and protecting its trade secrets.” Accordingly, the dis-
trict court excluded the German judgment from the re-
strictions imposed by the protective orders so Heraeus could
submit the judgment to foreign tribunals “as needed to en-
force its rights and protect its trade secrets from further use or
misappropriation.”
   G. Heraeus’s First Motion to Modify the Protective Or-
      ders
    Heraeus eventually determined that it would also need to
submit the Cited Documents to some of the tribunals presid-
ing over the European enforcement proceedings. However,
the parties were operating under the seventh amended pro-
tective order, which expressly covered the Cited Documents

Heraeus’s claims were time barred by the applicable statutes of limita-
tions. See Heraeus Med. GmbH v. Esschem, Inc., No. 2:14-cv-5169, 2018 WL
573113 (E.D. Pa. Jan. 26, 2018).
8                                                    No. 17-1674

and thus imposed restrictions on Heraeus’s ability to use the
documents.
    On July 21, 2015, Heraeus moved to modify the protective
orders to exclude the nine Cited Documents. Heraeus argued
that case-by-case amendments to the protective orders were
no longer “workable” because “Heraeus needs the flexibility
to submit the Cited Documents as appropriate and to react
quickly to the ever-changing enforcement situation.” Heraeus
further argued that continued protection of the Cited Docu-
ments was not necessary because: (1) the district court already
excluded the German judgment from the protective orders,
and the judgment quotes the Cited Documents extensively;
(2) the German court determined that the trade secrets and
confidential information described in the Cited Documents
belong to Heraeus; and (3) Heraeus will protect the infor-
mation in the Cited Documents from public disclosure. In the
proposed order attached to that motion, Heraeus also asked
the court to restrict Biomet and Esschem’s use of those docu-
ments.
   On September 22, 2015, the district court denied Heraeus’s
motion. In its order, the district court concluded that Heraeus
had the burden of showing good cause for modification of the
protective orders, and found that Heraeus had not met its bur-
den. The district court applied the four-factor test that district
courts in this Circuit regularly use when resolving motions to
modify protective orders.
    With respect to the first factor—the nature of the protec-
tive order—the district court noted that stipulated blanket
protective orders like the one at issue here are “more difficult
to modify or vacate.” However, the court also expressed con-
cern that “the proceedings in this court shouldn’t limit
No. 17-1674                                                     9

Heraeus’s ability to avail itself of whatever the German judg-
ment gives it.” And, because Biomet and Esschem repre-
sented that “they would be agreeable to less drastic alterna-
tives for use of the nine documents,” the court concluded that
“this factor favors at least a partial modification of the protec-
tive orders.”
    The district court held that the second factor—foreseeabil-
ity—was “a neutral factor.” Biomet and Esschem argued that
Heraeus should have anticipated the need to file enforcement
actions in other jurisdictions when it agreed to the protective
orders because Heraeus knew that Biomet sold its bone ce-
ment products outside Germany. On the other hand, Heraeus
argued that Biomet had shifted its operations to avoid the
German court’s jurisdiction. Ultimately, the district court was
“unable to determine the import of this factor.”
    The district court found that the third factor—the parties’
reliance on the protective order—weighed against modifica-
tion. The district court noted that “[t]he parties have been co-
operating in the discovery process for the past four years un-
der the terms of the various amendments to the protective or-
ders.” The district court also relied on the fact that “Heraeus
was able to obtain a judgment in the German proceedings
while the parties operated under the terms of the protective
orders for the past four years.”
   Finally, the district court determined that the fourth fac-
tor—good cause—also weighed against modification. Alt-
hough Heraeus claimed that it might need to submit the Cited
Documents to initiate enforcement proceedings in the future,
the court noted that Heraeus had already initiated enforce-
ment proceedings in the Netherlands, France, and the United
Kingdom without having to submit the Cited Documents.
10                                                 No. 17-1674

Moreover, the court pointed out that “Heraeus has cited no
instance where the current protective orders have impeded its
pursuit of any foreign action.”
    However, the court concluded that Heraeus had shown
good cause to shorten some of the time periods in which the
parties were required to respond under the existing protective
orders. Accordingly, the district court gave the parties until
October 9, 2015 “to submit an amendment to the Seventh
Amended Protective Order permitting Heraeus to pursue en-
forcement actions outside Germany in a timely fashion with-
out publically disclosing the confidential information con-
tained in the cited documents.” The district court “strongly
encourage[d] the parties to work together toward a compro-
mise.”
     H. Eighth Amended Protective Order
    Heraeus did not appeal the district court’s September 22,
2015 order. Instead, it negotiated with Biomet and ultimately
agreed to an eighth amended protective order that outlines
how Heraeus may use the Cited Documents in the enforce-
ment proceedings. Specifically, paragraph 5 of that protective
order only allows Heraeus to submit the Cited Documents in
enforcement proceedings if several confidentiality safeguards
are in place. For example, paragraph 5 requires that court files
discussing the Cited Documents are sealed from public view
and prevents Heraeus from discussing the Cited Documents
unless the courtroom is sealed.
   In turn, paragraph 6 of that protective order outlines the
procedure that Heraeus should follow “[i]n the event that
Heraeus seeks to use the Cited Documents in an Enforcement
Proceeding but cannot comply with one or more provisions
No. 17-1674                                                  11

in this Eighth Amended Protective order.” If the parties can-
not reach an agreement, paragraph 6(d) permits them to re-
quest a telephone conference with the district court to resolve
the dispute. The district court entered the eighth amended
protective order on October 8, 2015.
   I. Heraeus’s Second Motion to Modify the Protective
      Orders
    About a year later, on November 10, 2016, Heraeus filed
its second motion to modify the protective orders. Again,
Heraeus asked the court to exclude the Cited Documents from
the protective orders and to restrict Biomet’s and Esschem’s
use of the Cited Documents. Heraeus argued that these mod-
ifications were necessary because Biomet had opposed its ef-
forts to implement the paragraph 5 confidentiality safeguards
in Belgium, Norway, and Denmark. As a result, Heraeus
claimed that Biomet had prevented Heraeus from submitting
the Cited Documents in those tribunals. Heraeus also raised
many of the same arguments that it raised in its first motion
to modify—namely, that the confidential information in the
Cited Documents belonged to Heraeus and that Heraeus
would take sufficient steps to protect the information from
public disclosure.
    On January 18, 2017, the district court denied Heraeus’s
motion. The court applied the same four-factor test as before
and noted that “[m]uch of what Heraeus argues in its motion
to modify are points that have been raised before.” In addi-
tion, the court stressed that, “without changed circumstances,
there are no grounds to alter [its] determination last year that
the reliance factors ‘weigh[] against modification.’” The court
found that, contrary to Heraeus’s assertion, “the evidence be-
fore the court doesn’t show that Biomet used the terms of the
12                                                 No. 17-1674

eighth amended protective order to obstruct court proceed-
ings [in Belgium, Denmark, and Norway].” The district court
further stated that, “[i]n Austria, the parties successfully ne-
gotiated a resolution to confidentiality issues by employing
the procedure outlined in paragraph six of the eighth
amended protective order,” and “encourage[d] the parties to
consider the paragraph six procedure as a resource to resolve
confidentiality disputes related to the cited documents.” The
district court also rejected Heraeus’s contention that the Ger-
man judgment, which had since been affirmed by the German
Supreme Court, warranted modification of the protective or-
ders. The district court explained that, although the German
court’s factual findings were binding in other jurisdictions,
this “doesn’t get Heraeus across the finish line” because “is-
sues of ownership, misappropriation, and violation of a trade
secret are issues of law.” Again, Heraeus did not appeal the
district court’s order.
     J. Heraeus’s Third Motion to Modify the Protective Or-
        ders
    One month later, on February 17, 2017, Heraeus requested
a telephone conference with the district court pursuant to par-
agraph 6(d) of the eighth amended protective order. In the al-
ternative, Heraeus renewed its second motion to modify the
court’s protective orders.
    In that motion, Heraeus argued that the proceedings in
Belgium and Norway had been delayed as a result of Biomet’s
refusal to accept restrictions on its use of the Cited Docu-
ments. Heraeus attached correspondence between its counsel
and Biomet’s counsel in which Heraeus said that “[t]he crux
of the confidentiality disputes in both proceedings [in Bel-
No. 17-1674                                                   13

gium and Norway] is Biomet’s reluctance to accept any re-
strictions on Biomet’s use and disclosure of the Cited Docu-
ments.” Heraeus also attached declarations from two of its at-
torneys involved in the litigation in Belgium and Norway,
both of whom declared that the litigation was delayed be-
cause Biomet would not agree to restrictions upon its use and
disclosure of the Cited Documents. In its response letter, Bi-
omet said that “it has no objection to Heraeus’s use of the
Cited Documents in the identified ‘Enforcement Proceed-
ings,’” but refused to agree to restrictions on how it could use
its own documents.
    On March 1, 2017, the district court denied Heraeus’s mo-
tion in its entirety. First, the court concluded that Heraeus was
not entitled to a conference under paragraph 6(d) of the
eighth amended protective order. The court explained that
paragraph 6 “is triggered only when ‘Heraeus seeks to use the
Cited Documents in an Enforcement Proceeding but cannot
comply with one or more provisions in the Eighth Amended
Protective Order.’” Because Heraeus did not seek “permission
to use the documents itself,” but rather sought to “restrict Bi-
omet’s use of the documents,” the court concluded that the
eighth amended protective order did not apply.
    The district court also denied Heraeus’s alternative re-
quest to modify the protective order to restrict Biomet’s use of
the Cited Documents. Relying on the standard articulated in
its prior rulings, the court concluded that “Heraeus has
shown neither good cause nor changed circumstances” to
modify “an agreed order that addresses different topics and
which has governed the parties’ handling of litigation in
about ten nations for more than a year.”
14                                                   No. 17-1674

    Lastly, the court noted that “it isn’t clear that an order en-
joining use of the fruits of discovery by the party from whom
the discovery is sought falls within the scope of 28 U.S.C.
§ 1782.” The court questioned whether it had “any authority
to limit respondent’s use of discovery material” in an action
brought under § 1782. However, the court did not explicitly
rule on this issue and acknowledged that the parties had not
addressed it. It “assumed that, if presented with appropriate
grounds, [it] would have authority to limit Biomet’s use of the
documents it produced under § 1782.”
     K. Appeal
     On March 30, 2017, Heraeus filed a notice of appeal seek-
ing review of the district court’s March 1, 2017 order denying
its third motion to modify the protective orders. Heraeus also
asks us to review “all other orders underlying that decision,”
including the orders issued on September 22, 2015 and Janu-
ary 18, 2017.
                           II. Discussion
     A. Jurisdiction
    First, we address the scope of our review on appeal. The
parties agree that the district court’s order from March 1, 2017
is a final decision over which this Court has appellate juris-
diction. However, they disagree about whether we may also
review the “underlying orders” that were issued on Septem-
ber 22, 2015 and January 18, 2017.
   Biomet and Esschem argue that those underlying orders
were final and thus immediately appealable. Accordingly,
they claim that Heraeus was required to appeal those deci-
sions within thirty days after their issuance. Because Heraeus
No. 17-1674                                                     15

did not file a notice of appeal until March 30, 2017—approxi-
mately seventeen months after the first order and seventy
days after the second order—Biomet and Esschem say we lack
jurisdiction to review those decisions.
    On the other hand, Heraeus argues that these underlying
orders were not final, and thus not immediately appealable,
because they “did not fully and finally resolve the dispute
over the use of and restrictions upon the Cited Documents,
but instead … contemplated further action by the parties and
the court.” Nevertheless, Heraeus claims that we may review
those underlying orders now as part of this appeal because
they “are part of the final decision and were stepping stones
in reaching the district court’s ultimate conclusion.”
       1. Appealability of Discovery Orders In § 1782 Actions
    Generally speaking, we have jurisdiction to review “ap-
peals from all final decisions of the district courts.” 28 U.S.C.
§ 1291. A decision is “final” when it “ends the litigation on the
merits and leaves nothing for the court to do but execute the
judgment.” Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368,
373 (1981) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463,
467 (1978)). A decision is not final, and thus not immediately
appealable, if it is “tentative, informal or incomplete.” Cohen
v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949) (“So long
as the matter remains open, unfinished or inconclusive, there
may be no intrusion by appeal.”). This final judgment rule en-
sures deference to trial court judges, prevents piecemeal ap-
peals, and promotes efficient judicial administration. Fire-
stone, 449 U.S. at 374.
  Because discovery orders do not end the litigation on the
merits, they are usually not final and thus not immediately
16                                                      No. 17-1674

appealable. See Heraeus I, 633 F.3d at 593. However, in § 1782
actions the litigation on the merits occurs in a foreign tribunal,
so “the only matter is discovery.” Id. Because there is no un-
derlying merits proceeding in the district court, “many of the
concerns that make us reluctant to review discovery orders on
an interlocutory basis disappear.” In re Naranjo, 768 F.3d 332,
346–47 (4th Cir. 2014). Accordingly, we have exercised appel-
late jurisdiction over discovery orders in this context. See, e.g.,
Heraeus I, 633 F.3d at 593; Kestrel Coal Pty. Ltd. v. Joy Glob., Inc.,
362 F.3d 401, 403 (7th Cir. 2004). Our sister courts of appeals
have done the same. See, e.g., Naranjo, 768 F.3d at 346–47; In re
Premises Located at 840 140th Ave. NE, Bellevue, Wash., 634 F.3d
557, 566–67 (9th Cir. 2011) (exercising appellate jurisdiction
over district court’s order denying motion for a protective or-
der in § 1782 proceeding); Bayer AG v. Betachem, Inc., 173 F.3d
188, 190 & n.1 (3d Cir. 1999) (“Only the discovery dispute un-
der 28 U.S.C. § 1782 is occurring in the United States. There-
fore, because the underlying litigation is in [a foreign court],
this discovery order is immediately appealable.”); In re Gianoli
Aldunate, 3 F.3d 54, 57 (2d Cir. 1993).

       2. The Underlying Orders Were Final and Immediately
          Appealable
   With that in mind, we turn to the issue presented here:
whether the underlying orders in this § 1782 action were final
and immediately appealable. We conclude that they were for
several reasons.
   First, in its September 22, 2015 and January 18, 2017 or-
ders, the district court conclusively denied Heraeus’s motions
to modify the protective orders. Indeed, the court stated mul-
No. 17-1674                                                             17

tiple times throughout both of those orders that it was deny-
ing the relief Heraeus sought—namely, to exclude the nine
Cited Documents from the restrictions of the protective or-
ders. Having conclusively denied the relief sought, those or-
ders cannot fairly be characterized as “tentative, informal or
incomplete.” Cohen, 337 U.S. at 546.
    In arguing the contrary, Heraeus mischaracterizes those
orders. For example, Heraeus says that in the September 22,
2015 order, “the district court determined that ‘at least a par-
tial modification of the protective orders’ was warranted.”
However, the district court actually said that just one of the
four factors weighed in favor of partial modification. After de-
termining that two of the remaining factors weighed against
modification, and one was neutral, the court ultimately con-
cluded that, “[o]n balance, Heraeus hasn’t shown good cause
to remove the nine named documents from the protective or-
der.” Accordingly, the court “DENIE[D] Heraeus’s motion for
modification of the protective orders.”
    Heraeus also argues that the underlying orders were not
final because they contemplated future negotiations and pro-
ceedings in the district court. Specifically, Heraeus points out
that in the September 22, 2015 order the district court invited
the parties to submit an amendment to the protective orders
and “strongly encourage[d] the parties to work together to-
wards a compromise.” And in the January 18, 2017 order the
district court “encourage[d] the parties to consider the para-
graph six procedure as a resource to resolve confidentiality
disputes related to the cited documents.” 5


    5 These statements confirm the district court’s denial of Heraeus’s mo-

tions to modify the protective orders. The court instructed the parties to
18                                                             No. 17-1674

     However, the conclusion of all proceedings below is not a
prerequisite to appealing a discovery order in a § 1782 action.
Indeed, we have exercised appellate jurisdiction over a dis-
trict court’s order granting the plaintiff’s motion to enforce a
subpoena for documents under § 1782. See Kestrel Coal, 362
F.3d at 403. Such an order inherently contemplates future pro-
ceedings to manage the production of those documents. See
id. 6 Other courts of appeals have similarly exercised appellate
jurisdiction over orders granting discovery in § 1782 actions.
See, e.g., Naranjo, 768 F.3d at 347 (holding that the district

amend the time periods in the existing protective orders, which were “de-
signed” for German litigation, so Heraeus could “pursue enforcement ac-
tions outside Germany in a timely fashion.” This invited amendment im-
plies what the district court already made explicit: the existing protective
orders would continue to govern Heraeus’s use of the Cited Documents in
the enforcement proceedings. The district court’s instruction to use the dis-
pute resolution provided in paragraph six of the eighth amended protec-
tive order going forward similarly confirms that the protective orders
would continue to apply to the Cited Documents.
     6Therefore, Heraeus’s reliance on Kestrel Coal is not persuasive. It is
true that in Kestrel Coal we said “[o]rders [issued under § 1782] … are final
and appealable because they dispose of all issues in the proceeding.” 362
F.3d at 403. But we held that the district court’s order was final and imme-
diately appealable despite the obvious potential of future proceedings.
    Heraeus’s reliance on our language in Heraeus I is also misplaced. In
that case, we said that the orders were final “because there [was] no pend-
ing litigation in the district court.” Heraeus I, 633 F.3d at 593. We contin-
ued: “The court is finished with the matter—as the only matter is discov-
ery—and when no further proceedings are contemplated, the court’s last
order, even if it is a discovery order, is an appealable final order.” Id. How-
ever, in Heraeus I it was clear that the district court did not contemplate
further proceedings because it had denied Heraeus’s § 1782 petition. Thus,
we were not confronted with the issue presented here—i.e., whether an
order is appealable in this context if proceedings are ongoing.
No. 17-1674                                                      19

court’s order granting a motion to compel discovery under
§ 1782 was final and immediately appealable); Chevron Corp.
v. Berlinger, 629 F.3d 297, 306 (2d Cir. 2011) (same). In short,
the procedural posture of these decisions strongly suggests
that discovery rulings in § 1782 actions are final and immedi-
ately appealable even if proceedings are ongoing.
    In addition, Heraeus’s proposed definition of finality in
this context would be difficult, if not impossible, to apply in
practice. After all, it will not always be clear when the pro-
ceedings below have concluded in a § 1782 action. As Biomet
and Esschem point out, it is not even clear in this case that the
court’s last order from March 1, 2017—which the parties agree
is appealable—will put an end to the proceedings below,
which have been ongoing for almost a decade. In effect, if we
adopted Heraeus’s approach, a district court order in a § 1782
proceeding would almost never be final and appealable.
    The Tenth Circuit’s reasoning in In re Republic of Ecuador,
735 F.3d 1179 (10th Cir. 2013), further suggests that discovery
orders can be final and immediately appealable in a § 1782 ac-
tion even if proceedings are ongoing. In that case, an interve-
nor appealed the district court’s order granting a motion to
compel discovery in a § 1782 action. Id. at 1182. While the ap-
peal was pending, plaintiffs filed a second motion to compel
discovery in the district court alleging that the defendant con-
tinued to withhold relevant documents. Id. The magistrate
judge issued two more orders clarifying the scope of the ini-
tial order and compelling further production, but the district
court never adopted those orders. Id. On appeal, the plaintiffs
argued that the initial order was not a final decision for pur-
poses of appellate jurisdiction because “further proceedings
[are] still underway in the district court.” Id. at 1183 (alteration
20                                                    No. 17-1674

in original). However, the Tenth Circuit rejected this argu-
ment, holding that “a district court’s § 1782 order can[] be ‘fi-
nal’ [even] if subject to ongoing dispute about its coverage and
scope before a magistrate judge.” Id.
    Heraeus’s theory of finality would also undermine the
purposes of the final judgment rule. The Supreme Court has
said that “finality is to be given a practical rather than a tech-
nical construction.” Microsoft Corp. v. Baker, 137 S. Ct. 1702,
1712 (2017) (quoting Eisen v. Carlisle & Jacquelin, 417 U.S. 156,
171 (1962)); see also Brown Shoe Co. v. United States, 370 U.S. 294,
306 (1962) (endorsing a “pragmatic approach to the question
of finality”). Specifically, the Court has instructed us to con-
strue the finality requirement “in line with the[] reasons for
the rule”—namely, to “preserve[] the proper balance between
trial and appellate courts, minimize[] the harassment and de-
lay that would result from repeated interlocutory appeals,
and promote[] the efficient administration of justice.” Baker,
137 S. Ct. at 1712. On balance, those objectives support Bi-
omet’s position that the underlying discovery orders were fi-
nal and immediately appealable. Of course, litigants should
attempt to resolve discovery disputes through the district
judge in the first instance. However, as explained supra, the
district court conclusively denied the relief Heraeus sought in
both its September 22, 2015 and January 18, 2017 orders. In-
stead of appealing those orders to this Court, Heraeus filed
multiple repetitive motions in the district court. In doing so,
Heraeus wasted valuable judicial resources and further de-
layed the efficient resolution of this case.
   In sum, a discovery order issued in a § 1782 proceeding
may be final and immediately appealable even if proceedings
are ongoing. Here, the underlying orders were immediately
No. 17-1674                                                  21

appealable because the district court conclusively denied the
relief sought. Accordingly, Heraeus was required to file a no-
tice of appeal within thirty days after those orders were is-
sued. See Fed. R. App. P. 4(a)(1). Because Heraeus failed to do
so, we lack jurisdiction to review those orders. See Sherman v.
Quinn, 668 F.3d 421, 424 (7th Cir. 2012) (“A timely notice of
appeal is a prerequisite to appellate review.” (quoting
McCarty v. Astrue, 528 F.3d 541, 544 (7th Cir. 2008))).
       3. The Underlying Orders Do Not “Merge” With the Final
          Order On Appeal
    Next, Heraeus argues that we may still review the under-
lying orders as part of this appeal because they were “step-
ping stones in reaching the district court’s ultimate conclu-
sion.” Put differently, Heraeus claims that “[t]he Final Order
is cumulative, and the interlocutory Underlying Orders
merge with it on appellate review.”
    Heraeus is correct that, in the typical case where a party
appeals the final judgment, we may review “all decisions that
shaped the contours of that judgment,” including earlier in-
terlocutory orders. Kamen v. Kemper Fin. Servs., Inc., 908 F.2d
1338, 1341 (7th Cir. 1990), rev’d on other grounds, 500 U.S. 90,
111 (1991). However, those principles do not apply to the
atypical situation presented here.
    To understand why, it is helpful to analogize to the collat-
eral order doctrine. Under that narrow exception to the final
judgment rule, we have jurisdiction to immediately review in-
terlocutory orders that conclusively resolve an important is-
sue that is “conceptually separate from the merits” and “ef-
fectively unreviewable on an appeal from a final judgment.”
Herx v. Diocese of Fort Wayne-South Bend, Inc., 772 F.3d 1085,
22                                                  No. 17-1674

1088–89 (7th Cir. 2014). Critically, the Supreme Court has said
that collateral orders do not “merge[] in [the] final judgment”
because they “[do] not make any step toward final disposition
of the merits of the case.” Cohen, 337 U.S. at 546. Indeed, if we
waited until final judgment to review such orders, it would
be “too late” and the appellant’s “rights … will have been lost,
probably irreparably.” Id.
    The same reasoning applies to discovery orders in § 1782
actions. As explained supra, § 1782 actions are unique because
there is no litigation on the merits. Rather, § 1782 is just a
mechanism to obtain discovery. As a result, any orders issued
in this context will necessarily be separate from the merits of
the underlying litigation. For that reason, we have effectively
carved out an exception to the final judgment rule in this con-
text to allow for appellate review. Like reviewable collateral
orders, discovery orders in § 1782 actions do not take steps to
resolve the litigation on the merits. Thus, the underlying or-
ders are immediately appealable and do not merge with the
final judgment on appeal.
       4. The March 1, 2017 Order Does Not Encompass Both Is-
          sues Raised in This Appeal
   Finally, Heraeus argues that “it effectively does not matter
whether the Court reviews only the Final Order or also the
Underlying Orders, because the Final Order encompasses
and finally resolves all of the issues on appeal.” Heraeus is
wrong.
    In this appeal, Heraeus argues that the district court erred
in two ways: (1) by refusing to exclude the Cited Documents
from the scope of the protective order; and (2) by refusing to
impose restrictions on Biomet and Esschem’s use of the Cited
No. 17-1674                                                  23

Documents. In its first and second motions to modify the pro-
tective order, Heraeus asked the court for both forms of relief.
    But Heraeus did not ask for the same relief in its third mo-
tion. Heraeus fashioned that motion as a “notice of changed
circumstances and renewed motion.” Heraeus argues that, by
expressly renewing its second motion, it renewed its request
to exclude the Cited Documents from the restrictions in the
protective orders. However, with the exception of this single
statement about renewing its second motion, nothing in the
third motion asks the district court to remove the Cited Doc-
uments from the scope of the protective order.
    Instead, the third motion focused on Biomet’s refusal to
accept restrictions on its use of the Cited Documents. Indeed,
in the correspondence between Heraeus’s counsel and Bi-
omet’s counsel that was attached to the third motion, Heraeus
stated that “[t]he crux of the confidentiality disputes in both
proceedings [in Belgium and Norway] is Biomet’s reluctance
to accept any restrictions on Biomet’s use and disclosure of the
Cited Documents.”
   Moreover, at the hearing on the third motion, Heraeus’s
counsel said:
       All we’re hoping the Court can do is … either
       mediate some kind of solution here or enter a
       limited order that prevents the further disclo-
       sure publically of the cited documents … once
       they are produced to the Belgium and Norwe-
       gian courts and restricts Biomet from further
       disseminating those documents within Biomet
       on a going-forward basis for purposes other
24                                                 No. 17-1674

       than this litigation, and that’s all we’re really
       asking for.
Based on this representation, the district judge said: “[I]t
seems … we’re on a different part of the playing field than
we’ve been before.” The court explained: “[W]hat we’ve been
dealing with before with respect to several countries is what
use Heraeus can make of these documents because Heraeus
said it needed to put these documents in front of courts in or-
der to protect their rights and needed the authority to do
that.” The court continued: “[W]e’re at a different place, be-
cause now it appears to me that Heraeus is asking that Bi-
omet’s use of the documents be restricted when they weren’t
before and apparently didn’t have to be before in order to get
us through the first wave of countries.” The district judge pro-
ceeded to ask Heraeus’s counsel: “Where am I going wrong
here?” Heraeus’s counsel responded that the district judge
was “not too far off base,” but clarified that it had also asked
to impose restrictions on Biomet’s use in its previous two mo-
tions. If Heraeus was still seeking to exclude the Cited Docu-
ments from the scope of the protective orders as it had in pre-
vious motions, Heraeus’s counsel could have corrected the
district court’s misconception at this point in time. Instead,
Heraeus’s counsel confirmed that it was just seeking to restrict
Biomet’s use of the Cited Documents.
    In sum, Heraeus did not ask the district court to exclude
the Cited Documents from the scope of the protective orders
in its third motion, and it confirmed at the hearing on that
motion that it was simply seeking to restrict Biomet’s use of
the Cited Documents. As a result, the district court’s final or-
der of March 1, 2017 does not address whether to exclude the
No. 17-1674                                                      25

Cited Documents from the scope of the protective orders. Ra-
ther, it only addresses whether the eighth amended protective
order should be amended to impose restrictions on Biomet’s
use of the Cited Documents. We therefore limit our review to
that issue.
   B. The District Court Did Not Abuse Its Discretion
    “The trial court is in the best position to weigh fairly the
competing needs and interests of parties affected by discov-
ery.” Cty. Materials Corp. v. Allan Block Corp., 502 F.3d 730, 739
(7th Cir. 2007) (quoting Seattle Times Co. v. Rhinehart, 467 U.S.
20, 36 (1984)). Moreover, “[t]he unique character of the discov-
ery process requires that the trial court have substantial lati-
tude to fashion protective orders.” Id. (quoting Rhinehart, 467
U.S. at 36). Thus, we review a district court’s discovery deci-
sions for abuse of discretion. Prestwick Capital Mgmt., Ltd. v.
Peregrine Fin. Grp., Inc., 727 F.3d 646, 664 (7th Cir. 2013) (noting
that our review is “extremely deferential”). In this context, a
district court abuses its discretion if: “(1) the record contains
no evidence upon which the court could have rationally based
its decision; (2) the decision is based on an erroneous conclu-
sion of law; (3) the decision is based on clearly erroneous fac-
tual findings; or (4) the decision clearly appears arbitrary.” Id.
(quoting Sherrod v. Lingle, 223 F.3d 605, 610 (7th Cir. 2000)).
   Heraeus argues that the district court abused its discretion
by: (1) applying the wrong legal test; (2) placing the burden
on Heraeus to show good cause to modify the protective or-
ders; and (3) concluding that modification was not warranted
under the four-factor test. We address each of these argu-
ments in turn.
26                                                    No. 17-1674

       1. The District Court Applied the Correct Legal Test
    The district court applied the four-factor test that courts in
this Circuit regularly use when resolving motions to modify
protective orders. See, e.g., Romary Assocs., Inc. v. Kibbi, LLC,
No. 1:10-cv-376, 2012 WL 32969, at *1 (N.D. Ind. Jan. 6, 2012);
Chi. Mercantile Exch., Inc. v. Tech. Research Grp., LLC, 276 F.R.D.
237, 239 (N.D. Ill. 2011); Braun Corp. v. Vantage Mobility Int’l,
LLC, 265 F.R.D. 330, 332 (N.D. Ind. 2009); Murata Mfg. Co. v.
Bel Fuse, Inc., 234 F.R.D. 175, 179 (N.D. Ill. 2006). Under that
test, courts consider the following four factors: “(1) the nature
of the protective order; (2) the foreseeability, at the time of is-
suance of the order, of the modification requested; (3) the par-
ties’ reliance on the order; and most significantly (4) whether
good cause exists for the modification.” Chi. Mercantile Exch.,
276 F.R.D. at 239 (quoting Trading Techs. Int’l, Inc. v. GL Con-
sultants, Inc., Nos. 05-cv-4120, 05-cv-5164, 2011 WL 148252, at
*3 (N.D. Ill. Jan. 18, 2011)).
    Heraeus argues that this test does not apply where a party
seeks to modify the restrictions on a discrete group of docu-
ments. Although Heraeus does not directly identify an alter-
native legal test, it claims that the district court should have
followed our decision in Jepson, Inc. v. Makita Electric Works,
Ltd., 30 F.3d 854 (7th Cir. 1994). In that case, the district court
denied a motion to modify a stipulated protective order that
prevented one of the parties from using a deposition in an-
other proceeding before the International Trade Commission
(“ITC”). See id. at 855–58. On appeal, we concluded that the
non-party deponent “ha[d] tried to use the stipulated protec-
tive order and the [interim protective order] as shields to pre-
vent highly relevant and nonconfidential information from
No. 17-1674                                                  27

reaching the ITC,” and we “refuse[d] to assist [it] with its ef-
fort.” Id. at 860. We ultimately held that the district court
should have granted the motion to modify the protective or-
der to allow use of the deposition testimony in the ITC pro-
ceeding because this would prevent duplicative discovery
and would not prejudice the non-movant’s substantial rights.
See id. at 861.
    Jepson is distinguishable because Biomet is not using the
protective orders as a shield to prevent the Cited Documents
from being used in other tribunals. Although Heraeus
claimed that Biomet was using the protective orders to ob-
struct proceedings in Belgium and Norway, the district court
rejected that argument in its January 18, 2017 order. Specifi-
cally, the court found that “the evidence before [it] doesn’t
show that Biomet used the terms of the eighth amended pro-
tective order to obstruct court proceedings there.”
    The district court’s finding was not clearly erroneous.
Heraeus admits that it has been able to use the Cited Docu-
ments in several countries: Austria, Denmark, Finland,
France, and Italy. Moreover, Biomet repeatedly stated—in its
correspondence with Heraeus and at the hearing on these mo-
tions—that it did not have any objection to Heraeus’s use of
the Cited Documents in the European enforcement proceed-
ings, but rather objected to restrictions on its own use of the
Cited Documents. And, as the district court pointed out,
“Heraeus conceded … that the confidentiality disputes might
have been the result of confusion, rather than an effort by Bi-
omet to obstruct.” Therefore, Jepson does not apply.
28                                                    No. 17-1674

       2. The District Court Properly Placed the Burden on
          Heraeus to Show Good Cause to Modify the Protective
          Order
   The district court correctly concluded that Heraeus, as the
party seeking modification, has the burden of showing good
cause to modify the protective order. See, e.g., Braun, 265
F.R.D. at 332 (“The party seeking to modify the protective or-
der has the burden of demonstrating that good cause exists.”);
Murata Mfg. Co., 234 F.R.D. at 179 (same); Romary, 2012 WL
32969 at *1 (same).
    Nevertheless, Heraeus argues that, “[a]s the parties seek-
ing protection for the Cited Documents, Biomet and Esschem
bear the burden of showing, on a document-by-document ba-
sis, that the protection they seek is warranted.” In support of
this argument, Heraeus relies on cases that resolved motions
to seal or unseal court documents. See, e.g., Baxter Int’l, Inc. v.
Abbott Labs., 297 F.3d 544, 548 (7th Cir. 2002) (denying joint
motion to maintain documents under seal); United States v.
Pickard, 733 F.3d 1297, 1305 (10th Cir. 2013) (reversing district
court’s decision denying motion to unseal court records); In
re Bank One Sec. Litig., 222 F.R.D. 582, 584 (N.D. Ill. 2004)
(granting lead plaintiff’s motion to unseal the district court
record). Because there is a “strong presumption toward pub-
lic disclosure of court files and documents,” courts resolving
such motions have placed the burden on the party seeking
confidentiality to show good cause for keeping the docu-
ments from public view. In re Bank One, 222 F.R.D. at 585–86;
see also Baxter, 297 F.3d at 548 (noting “[t]he strong presump-
tion of public disclosure” for “materials that formed the basis
of the parties’ dispute and the district court’s resolution”);
Pickard, 733 F.3d at 1302 (“The party seeking to overcome the
No. 17-1674                                                    29

presumption of public access to the documents bears the bur-
den of showing some significant interest that outweighs the
presumption.” (quoting Helm v. Kansas, 656 F.3d 1277, 1292
(10th Cir. 2011))).

    Here, Heraeus is not asking to unseal the Cited Docu-
ments so the public can view them. To the contrary, Heraeus
stressed throughout this litigation that it wants to prevent pub-
lic disclosure of the Cited Documents. Thus, the presumption
in favor of public access to court documents is not implicated.
Absent this presumption, the district court properly placed
the burden on Heraeus to show good cause to modify the stip-
ulated protective order.

       3. The District Court Did Not Abuse Its Discretion In Ap-
          plying The Four-Factor Test
   Lastly, the district court did not abuse its discretion by
concluding that Heraeus had not met its burden under the
four-factor test to warrant modification of the eighth
amended protective order.
    With respect to the first factor—the nature of the protec-
tive order—the district court explained that Heraeus’s burden
was even higher because Heraeus agreed to the protective or-
ders at issue. See Am. Tel. & Tel. Co. v. Grady, 594 F.2d 594, 597
(7th Cir. 1978) (“[W]here a protective order is agreed to by the
parties before its presentation to the court, there is a higher
burden on the movant to justify the modification of the or-
der.”). Heraeus points out that paragraph 11 of the eighth
amended protective order expressly contemplates modifica-
tion because it reserves Heraeus’s right to challenge Biomet’s
designation of any document as confidential and to seek relief
30                                                   No. 17-1674

from the court. However, as the district court noted in its Jan-
uary 18, 2017 order, most protective orders provide for the
possibility of amendment. Moreover, because the eighth
amended protective order outlines a detailed dispute-resolu-
tion process that the parties must follow before they ask the
court for relief, it actually restricts Heraeus’s right to seek
amendment. Thus, this factor weighs against modification.
   The district court also considered whether Heraeus had
shown good cause for modification. The district court con-
cluded that Heraeus had not, stating:
     The only changed circumstance is that someone repre-
     senting Heraeus (which has many lawyers in light of
     the number of jurisdictions in which it is trying to pro-
     tect what it believes are its trade secrets) has decided
     that Biomet should be restricted in its use of the docu-
     ments Heraeus wants to use and already has discov-
     ered. The only good cause is that the suspicions that
     motivate those lawyers might be correct.
    The district court’s conclusion was not an abuse of discre-
tion. Indeed, Heraeus’s third and final motion simply re-
peated arguments that the district court had already ad-
dressed (and rejected) in the underlying orders. In particular,
Heraeus reiterated its claim that it owns the trade secrets con-
tained in the Cited Documents. However, the district court
had already rejected this argument in the ruling it issued just
six weeks prior. In that order, the district court explained that
the German court’s conclusion on ownership was not binding
because “issues of ownership, misappropriation, and viola-
tion of a trade secret are issues of law.” Moreover, although
Heraeus claimed that Biomet’s refusal to accept restrictions on
its use of the Cited Documents caused delays in Belgium and
No. 17-1674                                                               31

Norway, enforcement proceedings had proceeded apace in
several other countries despite a lack of such restrictions. Ac-
cordingly, Heraeus’s failure to show good cause or changed
circumstances also weighs against modification.
    Finally, the district court considered the parties’
longstanding reliance on the eighth amended protective or-
der. Specifically, the court noted that it “has governed the par-
ties’ handling of litigation in about ten nations for more than
a year.” Therefore, this factor also weighs against modifica-
tion.
   In sum, the district court did not abuse its discretion by
denying Heraeus’s request to modify the eighth amended
protective order to impose restrictions on Biomet’s use of the
Cited Documents. 7
                              III. Conclusion
    For the foregoing reasons, we AFFIRM the judgment of the
district court.




    7 The district court questioned whether it had authority under § 1782
to restrict Biomet’s use of its own documents. The district court noted that,
while § 1782 gave it authority to “place limitations on the movant’s use of
the discovery material … any authority to limit respondent’s use of dis-
covery material is less apparent on the face of the statute.” However, the
district court said that, “[i]n denying Heraeus’s motion to modify the pro-
tective order, the court has assumed that, if presented with appropriate
grounds, the court would have authority to limit Biomet’s use of the doc-
uments it produced under § 1782.” Because the district court ultimately
resolved the motion on a different ground and did not abuse its discretion
in doing so, we do not need to decide this issue.
