Deghetto v. Target Corporation

Nature of the Order

The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c). A protective order sets rules for handling sensitive information exchanged during discovery, the pretrial process in which parties obtain information and documents from one another. The parties agreed through counsel to the proposed terms, and the court found good cause for issuing a tailored confidentiality order.

Information That May Be Designated Confidential

The producing party—the party disclosing discovery material—may designate only portions it reasonably and in good faith believes contain:

- Previously undisclosed financial information, such as profitability reports, royalty rates, sales reports, or margins; - Previously undisclosed information about ownership or control of a nonpublic company; - Previously undisclosed business plans, product-development information, or marketing plans; - Personal or intimate information about an individual; or - Another category that the court later gives confidential status.

The order defines “Discovery Material” broadly as information of any kind produced or disclosed during discovery. Designations generally must be made by clearly marking the protected material and providing a version with the confidential information redacted. Deposition transcripts and exhibits may be designated during the deposition or within 30 days afterward. During that 30-day period, the entire deposition transcript must be treated as confidential.

A producing party may also correct an earlier failure to designate information by notifying prior recipients in writing before trial. The order does not waive objections to discovery requests, attorney-client privilege, work-product protection, or objections to using material as evidence at trial.

Who May Receive Confidential Information

Confidential discovery material may be disclosed only to categories listed in the order, including the parties and their insurers; counsel and their litigation staff; outside vendors; mediators or arbitrators; certain people identified in a document; potential witnesses; experts and other specialized advisers; deposition transcription staff; and the court and its personnel.

Before confidential material is disclosed to a mediator or arbitrator, potential witness, expert, or specialized adviser, that person must receive the order and sign the required nondisclosure agreement. Counsel must retain the signed agreements and produce them to opposing counsel before the person testifies or when the case ends, whichever comes first. People receiving confidential material must take reasonable precautions against unauthorized or accidental disclosure.

Court Filings and Challenges

A party filing confidential material under seal must publicly file a redacted version and file the unredacted version under seal. The party must also submit a letter brief and supporting declaration explaining, on a particularized basis, why continued sealing is justified. The order states that the court may unseal material if it cannot make specific findings that sealing is essential and narrowly tailored.

The court retains discretion over whether to keep confidential any material submitted in connection with a motion or other proceeding that may lead to a court decision. It warns that material introduced at trial is unlikely to remain sealed, even if it was previously designated confidential. A party may challenge a confidentiality designation before trial, and a party may request additional limits on disclosure, such as an attorneys’-eyes-only restriction, subject to court resolution if the parties cannot agree.

Use, Privilege, and Return of Materials

Recipients may use confidential discovery material only to prosecute or defend this action and any related appeals. They may not use it for business, commercial, competitive, or other litigation purposes. The order does not restrict a party’s rights regarding its own documents or information.

The order also addresses inadvertent disclosure of material claimed to be protected by attorney-client privilege or the work-product doctrine. Such disclosure does not by itself waive the protection. After receiving notice, the receiving party generally must return or destroy the material within five business days and provide a certification. The disclosing party must then provide a privilege log within five business days, while the receiving party may ask the court to compel production. The disclosing party retains the burden of proving that the material is privileged or otherwise protected.

Within 60 days after the final disposition of the action, including appeals, recipients must return or, with the producing party’s permission, destroy confidential material and certify that they have not kept copies or other reproductions. Counsel specifically retained for the action may keep archival copies of specified case materials, but those copies remain subject to the order. The order continues after the litigation ends, and the court retains jurisdiction to enforce it or impose contempt sanctions.

Ruling

The court issued the stipulated confidentiality agreement and protective order. The order governs discovery and confidentiality; it does not resolve the merits of Joyce Deghetto’s claims against Target Corporation. Judge Philip M. Halpern signed the order on November 15, 2024.