Brown v. Building Engines, Inc.

Background

The parties stipulated to confidentiality terms for documents and information exchanged during the pretrial phase. The court found good cause under Federal Rule of Civil Procedure 26(c), which allows protective orders limiting disclosure during discovery, and ordered that the stated restrictions apply.

Protective-order requirements

Counsel may designate information as confidential when, in good faith, the designation is needed to protect proprietary, trade-secret, or otherwise sensitive nonpublic information. Confidential information may be used only in connection with this action. A party challenging a designation must first make a good-faith effort to resolve the dispute, after which the challenging party may ask the court to resolve it. The designation does not establish that the information is relevant or admissible.

Confidential documents generally may be disclosed only to the requesting party and counsel, necessary litigation-support employees or agents, consultants or experts assisting with the case, and the court, including a mediator or other person who receives the information through a court-related position. The parties also reserved the ability to designate information as “For Attorneys’ Eyes Only.” Before disclosure, counsel must explain the confidential nature of the information, explain the order’s restrictions, and obtain the recipient’s signed agreement to follow the order.

Failing to mark information confidential when it is first disclosed does not waive the right to later designate it. Personally identifying information exchanged in discovery must be kept securely. Under Federal Rule of Evidence 502, the order provides that producing privileged or work-product-protected material, whether accidentally or otherwise, does not waive that protection in this case or another federal or state proceeding. At the end of the litigation, confidential information must generally be returned or certified as destroyed within 30 days after final judgment is no longer subject to appeal, although counsel may keep protected working files. The order does not prevent disclosures required by law or a valid subpoena.

Sealing addendum and ruling

The addendum states that no document may be filed under seal without a later order addressing the specific documents. A sealing request must include an affidavit and legal memorandum addressing the standards for sealing and the authorities identified in the addendum. Without another application, parties may redact Social Security numbers, taxpayer-identification numbers, financial account numbers, and names of minor children, replacing the children’s names with initials and noting each redaction on the page.

The court entered the stipulated protective order and addendum. Judge P. Kevin Castel signed the order as the United States District Judge. The opinion text does not state that the court decided the underlying claims in the case.