Washington State Investment Board v. Odebrecht S.A.

Background

The parties stipulated to a confidentiality agreement and proposed protective order under Federal Rule of Civil Procedure 26(c). They asked the court to protect nonpublic and competitively sensitive information that might be disclosed during discovery. The court found good cause for issuing a tailored order governing the pretrial phase of the case.

Protective-order requirements

The order allows a producing party to designate only portions of discovery material that it reasonably and in good faith believes fall within specified categories. Those categories include previously undisclosed financial information; information about ownership or control of a nonpublic company; business, product-development, or marketing plans; personal or intimate information; information that the producing party reasonably believes must be protected by law; and any category the court later designates as confidential.

The producing party or its counsel generally must mark protected material as “Confidential” and provide a redacted copy for future public use. Deposition testimony and exhibits may be designated during the deposition or within 30 days after it ends. 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 material by notifying recipients in writing before trial.

Confidential material may be disclosed only to the people listed in the order, including the parties, insurers and their counsel, case counsel and support staff, vendors, certain mediators or arbitrators, document recipients, potential witnesses, experts and specialized advisers, deposition transcription staff, and the court. Certain recipients must first receive the order and sign a nondisclosure agreement. Covered people must take precautions against unauthorized or accidental disclosure and may use the material only to prosecute or defend this case and related appeals—not for business, commercial, competitive, or unrelated litigation purposes.

Sealing and challenges

The order does not automatically require the court to seal material filed in connection with a motion or proceeding. A party seeking to file material under seal must publicly file a redacted version and submit a letter brief and supporting declaration explaining, on a particularized basis, why continued sealing is justified. The court retains discretion over confidential treatment and stated that it is unlikely to seal material introduced into evidence at trial.

A party may object to a confidentiality designation or request additional disclosure limits, such as attorneys’ eyes-only treatment, before trial. If the parties cannot resolve the dispute promptly, the affected counsel must present it to the court under the court’s individual practices. The order also preserves objections to discovery requests, privileges and protections, and objections to the admissibility of evidence.

End of the case and enforcement

Within 60 days after the final disposition of the case, including appeals, recipients generally must return or destroy confidential material and certify that they have not retained copies or other reproductions. Case counsel may keep specified archival materials, but those materials remain subject to the order. The order survives termination of the litigation, and the court retains jurisdiction to enforce its obligations and impose contempt sanctions.

Disposition

Judge Barbara Moses ordered the stipulated protective order on January 10, 2025. This was a discovery and confidentiality order; the opinion does not decide the parties’ underlying claims or defenses.