Yellowcake, Inc. v. Discos Aries LLC

Nature of the Order

The court entered a stipulated confidentiality, or protective, order under Federal Rule of Civil Procedure 26(c). Yellowcake, Inc. and the defendants stipulated to the order, and the order states that good cause had been shown. The order governs information produced by parties and nonparties during this litigation.

Confidentiality Designations

The order creates two levels of protected information:

- “CONFIDENTIAL” information is nonpublic, sensitive, or confidential information that the producing party believes in good faith should be protected. Examples listed include technical, customer, sales, marketing, financial, and other commercially sensitive information. - “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY” information is particularly sensitive information that cannot be disclosed without a substantial risk of harm to the producing party. Examples include proprietary business information, strategic plans, competitive analyses, artist agreements, personnel files, legally protected personal information, and subscriber-identifying information.

Information already in the public domain is not protected information under the order.

Use and Access

Protected information may be used only to prepare for, conduct, and appeal this litigation. Access is limited to defined “Qualified Persons.” Depending on the designation, those persons may include outside counsel and support personnel, participating in-house counsel, independent experts and consultants who sign the required acknowledgment and receive advance notice, the court and its staff, litigation vendors, court reporters, and certain authors or prior recipients of the information. Officers, directors, and employees actively involved in the case may receive information designated “CONFIDENTIAL.”

The order also permits disclosures required by law or a valid court order, subject to notice requirements, and allows parties to use their own protected information. It provides procedures for unintentional disclosures and for disclosure during depositions, hearings, mediations, and trial.

Challenges and Court Filings

A party challenging a confidentiality designation must first try to resolve the dispute informally. If that effort fails, the party may object in writing and then move for a court ruling within the period specified by the order. Separate deadlines and procedures apply to objections involving experts, consultants, and requests to give protected information to people who are not Qualified Persons.

A party wishing to use protected information in a court filing must first ask the producing party to remove the designation. The order does not itself permit filing documents under seal. A separate court order is required, and a sealing application must address the standards for sealing and the controlling authority identified in the order.

Return, Destruction, and Continuing Enforcement

Within 120 days after the litigation and related appeals conclude, protected information and most copies, notes, summaries, and descriptions must be returned or destroyed, subject to stated exceptions. Counsel may retain work product and court filings, but those materials remain subject to the order. The confidentiality obligations continue after the case ends, and the court retains jurisdiction to enforce the order.

The order also provides that inadvertent production of privileged or protected material does not waive the privilege or protection if the producing party gives prompt written notice. Upon request, the receiving party must return or destroy the material and may not use it in discovery, depositions, filings, or trial, subject to the order’s procedure for seeking court relief.

Disposition and Scope

Judge P. Kevin Castel ordered the stipulated protective order. The opinion does not resolve the underlying claims or defenses in Yellowcake, Inc. v. Discos Aries LLC; it addresses confidentiality and discovery procedures only.