Hildreth Real Estate Advisors LLC v. Galvis

Background

The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c). They sought protection for nonpublic and competitively sensitive information that might be disclosed during discovery. The court found good cause for an appropriately limited order governing the pretrial phase of the case.

What the Order Covers

The order permits a producing party to mark as confidential only material that it reasonably and honestly believes includes qualifying information, such as:

- previously undisclosed financial information; - information about ownership or control of a private company; - business, product-development, or marketing plans; - trade secrets or other sensitive business information not publicly disclosed; - personal or intimate information about an individual; or - another category that the court later protects as confidential.

The order explains how confidential designations may be made for documents, deposition exhibits, and deposition testimony. It also allows a producing party to correct an earlier failure to designate material as confidential before trial by notifying prior recipients.

Limits on Disclosure and Use

Confidential discovery material may be disclosed only to specified recipients, including the parties, certain counsel and their staff, service providers working on the case, the court, insurers and their counsel, certain document recipients, and potential witnesses or experts. Witnesses, experts, mediators, arbitrators, and certain other recipients must first receive the order and sign a nondisclosure agreement.

Recipients may use confidential material only to prosecute or defend this case and related appeals. They may not use it for business, commercial, competitive, or unrelated litigation purposes. The order requires recipients to take precautions against unauthorized or accidental disclosure and generally requires confidential material to be returned or destroyed within 60 days after the final disposition of the case, including appeals, unless the producing party permits destruction instead of return. The order continues to bind covered persons after the litigation ends.

Court Filings and Challenges

A party filing confidential material must publicly file a redacted version and file the unredacted version under seal. A sealing request must include a letter brief and supporting declaration explaining, on a particularized basis, why continued sealing is justified. The court retains discretion over whether to keep material confidential when it is submitted in connection with a motion or proceeding, and the order warns that trial evidence is unlikely to remain sealed.

A party may object to a confidentiality designation or request additional disclosure limits before trial. If the parties cannot promptly resolve the dispute, they must present it to the court under the court’s individual practices.

Accidental Privileged Disclosures

An accidental disclosure of attorney-client privileged or attorney-work-product material does not automatically waive the protection. After a claim of accidental disclosure, the receiving party generally must return or destroy the material within five business days and certify that it did so. The disclosing party must then provide a privilege log. The receiving party may ask the court to order production of the material, while the disclosing party retains the burden of showing that the material is privileged or protected.

Disposition

Judge Dale E. Ho entered the stipulated confidentiality and protective order. The order binds people subject to it, retains the court’s jurisdiction to enforce its obligations, and provides that willful violations may result in contempt. The plaintiff was directed to serve the order on the defendant within three business days and file proof of service.