Sportvision, Inc v. MLB Advanced Media L.P.

Background

The parties, through counsel, agreed to an amended confidentiality agreement and protective order under Federal Rule of Civil Procedure 26(c). They asked the court to protect nonpublic and competitively sensitive information that might be disclosed during discovery. The court found good cause for a tailored order governing the pretrial phase of the action and ordered the parties and other persons subject to the order to comply with it, subject to contempt sanctions.

Confidentiality Categories

The order allows a producing party to designate appropriate portions of discovery material as:

- Confidential, including certain nonpublic financial, business, technical, personal, trade-secret, and commercially sensitive information; - Highly Confidential — Limited, for extremely sensitive nonpublic business, financial, regulatory, strategic, or technical information whose disclosure could cause competitive, financial, or business injury; - Highly Confidential — Attorneys’ Eyes Only, for highly sensitive and currently competitive commercial information whose disclosure could create a substantial risk of competitive harm; and - Highly Confidential — Source Code, for specified software and hardware code and related technical material whose disclosure could create substantial competitive harm that less restrictive measures could not avoid.

The producing party must make designations reasonably and in good faith. The order also identifies information that is outside its confidentiality protections, including information that becomes public without fault of the receiving party, is lawfully obtained from an unrestrained third party, was already lawfully possessed, is independently discovered, or was submitted to a government entity without a request for confidential treatment.

Limits on Disclosure and Use

Confidential material may be disclosed only to listed categories of recipients, including the parties, litigation counsel and their staff, service providers, certain translators and consultants, mediators or arbitrators, certain witnesses and experts, stenographers, and the court. Several categories of recipients must first receive the order and sign a nondisclosure and proper-use agreement.

Attorneys’-eyes-only material is subject to narrower access. It may generally be disclosed to outside counsel and necessary staff, the court, specified litigation-support personnel, qualified experts and consultants, and certain nonexpert witnesses who meet the order’s conditions. The material may not be disclosed to receiving parties’ in-house counsel, staff, or employees except as expressly allowed by the order.

Highly Confidential — Limited material may be shown to authorized recipients of attorneys’-eyes-only material and to specified individuals identified separately for the plaintiffs and defendant, provided those individuals sign the required agreement. The parties also agreed to additional topic and time-period limits for certain identified individuals. All protected discovery material may be used only to prosecute or defend this action and related appeals, not for business, commercial, competitive, or other litigation purposes.

Source-Code Procedures

The order imposes additional safeguards for source code. Access is limited to specified outside counsel, litigation-support personnel, and approved outside experts or consultants who are not employed by or involved in competitive decision-making for a party or its competitor. The receiving party must provide information about proposed experts and consultants before inspection, and the producing party must approve them before they review the code.

Source code must generally be reviewed in a secure room on a computer without internet or network access, with access ports disabled as necessary. Recording devices, cameras, removable media, and other prohibited devices may not enter the room. The receiving party may take limited notes but may not copy, transcribe, transmit, or remove the source code. The order limits printing, requires logs of access and copies, restricts the number of people who may access the code, and requires destruction or return of copies after the case. The parties must make necessary efforts to file source code under seal.

Other Procedures

A party may object to a confidentiality designation before trial. If the parties cannot resolve the dispute, they must present it to the court under the court’s individual practices. The order also permits requests for additional disclosure limits and provides procedures for correcting an inadvertent failure to designate material.

The order protects against waiver when privileged or work-product material is inadvertently produced. Upon request, the receiving party must return, sequester, or destroy the specified material, stop using or disclosing it while the claim is resolved, and take reasonable steps to retrieve it if necessary. Draft expert reports and certain other expert materials are treated as attorney work product and are not discoverable under the order.

Court Filings, Prosecution Bar, and Final Disposition

A party seeking to file protected material under seal must publicly file a redacted version and submit an unredacted version under seal, along with a letter brief and supporting declaration explaining the need for continued sealing. The court retains discretion over whether to seal discovery material submitted in connection with a motion or proceeding and stated that material introduced at trial is unlikely to remain sealed absent the required findings.

The order bars persons who receive specified highly protected material from engaging in defined patent-prosecution activities involving the capture, collection, depiction, or insertion of three-dimensional spaces and objects into video, or involving applications related to the patents in suit. The restriction lasts through one year after a final, nonappealable judgment or order, or complete settlement of all claims.

Within 60 days after final disposition of the action, including appeals, recipients must return or, with the producing party’s permission, destroy protected discovery material and provide written certification. Attorneys specifically retained for the action may keep archival copies of specified case materials, which remain subject to the order. The court retains jurisdiction to enforce the order and impose contempt sanctions. Judge Paul G. Gardephe signed and ordered the protective order on May 17, 2021. The order itself does not resolve the parties’ underlying claims, defenses, or the discoverability of any particular source code.