JSM Music, Inc. v. Marcum LLP

Background

The parties, through counsel, jointly requested a protective order under Federal Rule of Civil Procedure 26(c). They represented that discovery would involve confidential documents or information whose public disclosure could harm the producing person or a third party to whom a confidentiality duty was owed. The court found good cause for an appropriately limited confidentiality order governing the pretrial phase.

Confidentiality Rules

The order permits a producing person to designate only portions of discovery material as confidential when public disclosure is restricted by law or would harm business, commercial, financial, or personal interests. Listed categories include previously undisclosed financial information; information about ownership or control of a nonpublic company; business, product-development, or marketing plans; and personal or intimate information.

Recipients may disclose designated confidential material only to specified categories of people, including the parties and their insurers, counsel and supporting staff, litigation vendors, mediators or arbitrators, certain authors or recipients of documents, potential witnesses, experts, deposition stenographers, and the court. In several situations, the recipient must first sign a nondisclosure agreement. The material may be used only to prosecute or defend this action and related appeals, not for business, commercial, competitive, or other litigation purposes.

Challenges, Court Filings, and Privileged Material

A party may object to a confidentiality designation or request additional limits, such as an attorneys’-eyes-only restriction, by giving written notice. If the parties cannot resolve the dispute, they must present it to the court under the judge’s individual rules.

The order does not automatically authorize filing confidential material under seal. A party seeking to file material under seal must first submit a letter-motion explaining the basis for sealing, and the court retains discretion over whether to give confidential treatment to material submitted in connection with a motion or proceeding. Confidential court submissions generally must include a public redacted version and an unredacted version filed under seal.

The order includes protections for personally identifying information and states that producing privileged or attorney-work-product-protected material does not waive the protection. When a party claims that protected material was inadvertently disclosed, the receiving party generally must return or destroy it within five business days, after which the producing party must provide a privilege log. The receiving party may ask the court to compel production, and the producing party retains the burden of establishing privilege or other protection.

Disposition and Continuing Obligations

Judge Jennifer H. Rearden entered the stipulated protective order. It survives the end of the litigation. Within 30 days after final disposition, recipients must return or, with the producing person’s permission, destroy designated confidential material and certify that they kept no copies or summaries, subject to a limited archival-copy exception for attorneys’ case files. The court retained jurisdiction to enforce the order, and it stated that willful violations could result in contempt punishment.