Select Research Ltd. v. Amazon.Com, Inc.

Background

Select Research Ltd. and Amazon.com, Inc. and Amazon.com Services LLC jointly submitted a proposed stipulated confidentiality agreement and protective order. They represented that discovery in the lawsuit could involve trade secrets, confidential business information, or other proprietary information. The order was entered under Federal Rule of Civil Procedure 26(c), which permits courts to issue protective orders governing discovery.

Main provisions

The order permits either party to designate documents, information, or other materials as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” when the party has a good-faith belief that the material contains confidential or proprietary information or trade secrets. The protections also cover copies, excerpts, summaries, compilations, and statements that reveal designated material. Information already public, or lawfully known or obtained from a nonconfidential source, is excluded.

Designated material may be used only for this lawsuit. “CONFIDENTIAL” material may be disclosed to specified people, including the parties’ lawyers, certain employees and in-house counsel, up to three designated representatives of each party, approved consultants and experts, certain witnesses, litigation-support personnel, document authors or recipients, and the court. Consultants and experts must sign an acknowledgment and receive notice before access; the producing party may object and seek court protection.

“ATTORNEYS’ EYES ONLY” material is subject to tighter limits. It generally may be disclosed only to specified counsel, counsel’s employees, approved consultants and experts, litigation-support personnel, certain authors or recipients, and the court. The order also imposes a prosecution bar: people who receive the other party’s attorneys’-eyes-only material generally may not prepare or assist with certain patent applications concerning body health calculation, 3-D imaging, or 3-D modeling during the case and for one year afterward, including appeals, absent written consent.

The order preserves claims of attorney-client privilege and work-product protection. It provides procedures for recovering inadvertently produced privileged material and for correcting accidental failures to mark material as confidential. It also allows parties to challenge confidentiality designations after conferring and, if necessary, by seeking relief from the court.

The order requires parties to seek a separate motion to seal under the court’s local rules before filing material under seal. It states that the court will apply the standard governing the sealing of judicial records. Within 30 days after final termination of the action, including appeals, designated material generally must be returned or destroyed at the producing party’s election, subject to specified exceptions for privileged materials, admitted evidence, and archival litigation files. The confidentiality obligations continue after the litigation ends unless changed by written agreement or court order.

Ruling and effect

Judge Jesse Furman ordered the stipulated protective order after finding good cause, and the clerk was directed to terminate ECF No. 41. The court expressly stated that it had not reviewed the documents covered by the order and therefore made no finding that any document was confidential. Any such determination will be made, if necessary, through the order’s procedures and the court’s rules, subject to the presumption favoring public access to judicial documents. The order concerns discovery management; it does not decide the underlying claims between Select Research and the Amazon defendants.