Pena v. Miami Heat Limited Partnership.

Nature of the Order

The court entered a stipulated confidentiality and protective order under Federal Rule of Civil Procedure 26(c). The order applies to discovery in the action, which includes Joel Pena's claims against Miami Heat Limited Partnership, NBA Properties, Inc., and Nike Inc., as well as Miami Heat Limited Partnership's counterclaim against Pena. The parties represented that they may need to disclose nonpublic and competitively sensitive information and agreed to the order's terms.

Confidential Information

A producing party may designate material as confidential only when it reasonably and in good faith believes the material includes specified protected information. The listed categories include previously undisclosed financial information; information about ownership or control of a nonpublic company; business plans, product development, contract terms, intellectual property, or marketing plans; personal or intimate information; and other categories that the court later gives confidential status.

For most discovery material, the producing party or counsel must mark the protected portions as “Confidential” and provide a version redacted for future public use. For depositions, the entire transcript is treated as confidential for 30 days after the deposition. During that period, the producing party may identify the specific pages and lines that will remain designated as confidential.

A producing party may later designate material that was initially produced without a confidentiality restriction. After notice, the parties must treat the identified portions as confidential, and the producing party must provide replacement versions bearing the designation within two business days.

Permitted Disclosures and Use

Confidential discovery material may be disclosed only to people identified in the order. These include the parties and their insurers, counsel and certain litigation support personnel, outside vendors, mediators or arbitrators who sign the required nondisclosure agreement, document authors and recipients, potential witnesses, experts and specialized advisers who sign the agreement, deposition stenographers, the court and its personnel, and up to two in-house lawyers for each defendant.

The order also permits use of all discovery material in defined related proceedings before the United States Patent and Trademark Office, the Trademark Trial and Appeal Board, or a similar state trademark authority concerning the CULTURE and CULTURE-formative trademark registrations and applications identified in Miami Heat Limited Partnership's counterclaims. Confidential material used in such a proceeding may not be publicly filed or disclosed unless it otherwise becomes part of the public record.

Recipients may use confidential discovery material only to prosecute or defend this action, the defined related proceedings, and appeals from them. The order does not restrict a party's rights concerning its own documents or information. It also allows production in response to a lawful subpoena or other compulsory process, subject to notice to the producing party when reasonably possible and, if time permits, at least 10 days before disclosure.

Court Filings, Challenges, and Privilege

A party filing confidential discovery material or papers revealing it must publicly file a redacted version and file the unredacted version under seal in accordance with the court's rules. A party seeking sealing must submit an application and supporting declaration providing a particularized justification. The order warns that the court may not seal material introduced into evidence at trial merely because it was previously designated confidential.

A party may object to a confidentiality designation before trial by serving written notice stating the grounds with particularity. If the parties cannot resolve the dispute, counsel must bring it to the court under the applicable individual practice.

The order states that it does not waive objections to discovery, privilege, or other protection, and it does not decide the admissibility of evidence. It further provides that producing privileged or work-product-protected documents or electronically stored information does not waive those protections in this or another federal or state proceeding, and it is intended to provide the maximum protection allowed by Federal Rule of Evidence 502(d).

End of the Case and Enforcement

Within 60 days after final disposition of the action, including appeals, recipients generally must return or destroy confidential discovery material and certify that they kept no copies or other reproductions. Parties involved in a related proceeding may retain the material for that proceeding's limited purposes. Counsel specifically retained for this action may keep an archival copy of specified litigation materials, but those copies remain subject to the order.

The order continues after the litigation ends. The court retained jurisdiction over persons subject to the order as necessary to enforce its obligations or impose contempt sanctions. The order is procedural and ancillary to discovery; it does not resolve the merits of the parties' claims or counterclaim.