Montalbano v. Dreamgirls Inc.

Background

The parties jointly requested a confidentiality and 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 tailored order governing the pretrial phase of the case.

Terms of the Order

The order defines “Discovery Material” as information of any kind produced or disclosed during discovery. A producing party may designate material as “Confidential” only when it reasonably and in good faith believes the material includes specified types of information, such as previously undisclosed financial information; information about ownership or control of a nonpublic company; business, product-development, or marketing plans; or personal or intimate information. The court may also give confidential status to another category of information later.

The order establishes procedures for marking confidential material and producing a redacted copy for public use. It provides separate procedures for designating deposition testimony and exhibits, including a 30-day period after a deposition during which the entire transcript must be treated as confidential. A producing party may also correct an earlier failure to designate material by notifying prior recipients in writing.

People subject to the order may not disclose confidential discovery material except as the order permits. The order limits use of that material to prosecuting or defending this case and related appeals, and prohibits business, commercial, competitive, or unrelated litigation use. The text of one portion listing permitted recipients is visibly corrupted in the supplied opinion, but the order separately refers to parties, counsel, and other litigation participants as persons subject to its requirements.

The order does not waive objections to discovery, privilege, or other protections, and it does not decide whether evidence is admissible at trial. A party objecting to a confidentiality designation may give written notice and, if the dispute is not resolved, bring it to the court under the judge’s individual practices. A party seeking additional limits, such as an attorneys’-eyes-only restriction, must follow a similar procedure.

Sealing and Privilege

A party filing material under seal must publicly file a redacted version and provide the court with an unredacted version under seal and as a courtesy copy. The party must also submit a letter brief and supporting declaration explaining, on a particularized basis, why continued sealing is justified. The court retains discretion over whether to keep designated material confidential when it is submitted in connection with a motion or other proceeding and states that it is unlikely to seal material introduced at trial.

If privileged or attorney-work-product material is inadvertently disclosed, the disclosure does not itself waive the protection. After receiving a claim of inadvertent disclosure, the receiving party must return or destroy the material within five business days and provide counsel’s certification. The producing party must then provide a privilege log. The receiving party may ask the court to compel production, and the producing party retains the burden of establishing that the material is privileged or protected.

Disposition

Judge Philip M. Halpern entered the stipulated protective order and required covered persons—including the parties, their representatives, agents, experts, consultants, third parties providing discovery, and others with actual or constructive notice—to comply with it, subject to contempt. Within 60 days after final disposition, including appeals, recipients generally must return or destroy confidential discovery material and certify that they kept no copies, while specifically retained attorneys may keep certain archival litigation files subject to the order. The order survives termination of the litigation, and the court retains jurisdiction as needed to enforce it or impose contempt sanctions. A related non-disclosure agreement form is included for people who receive confidential discovery material.