Buffington v. sPay, Inc.

Nature of the Order

The parties stipulated to, and the court entered, a confidentiality and protective order under Federal Rule of Civil Procedure 26(c). The order governs nonpublic information that may be produced or disclosed during discovery. It applies to the parties, their representatives, agents, experts, consultants, third parties providing discovery, and other people with actual or constructive notice of the order. Violations may be punished as contempt of court.

Information That May Be Designated Confidential

A producing party may designate only material that it reasonably and in good faith believes includes previously undisclosed financial information; information about ownership or control of a nonpublic company; business, product-development, or marketing plans; personal or intimate information; or another category that the court later protects. The order describes procedures for marking confidential material and producing a redacted copy for future public use. Deposition testimony is treated as confidential during the 30 days after a deposition, subject to the order's procedures for making specific designations.

A producing party may also correct an earlier failure to designate information by notifying prior recipients in writing before trial. The order does not waive objections to discovery, privilege, or other protections, and it does not decide whether evidence will be admissible at trial.

Permitted Disclosure and Use

Confidential discovery material may be disclosed to the parties and certain insurers and counsel; counsel and their staff; outside vendors; mediators or arbitrators; people identified as document authors or recipients; potential witnesses; experts and specialized consultants; deposition stenographers; and the court and its personnel. Certain recipients, including witnesses, experts, mediators, and arbitrators, must first receive the order and sign a nondisclosure agreement.

Recipients may use confidential material only to prosecute or defend this action and related appeals. They may not use it for business, commercial, competitive, or unrelated litigation purposes. The order preserves a party's rights concerning its own documents and information and permits disclosure in response to lawful compulsory process, subject to notice to the producing party when possible.

Court Filings and Sealing

The order requires public filing of redacted copies when confidential material is included in a court submission, while unredacted copies are filed under seal. A party seeking to file documents under seal must also submit a letter brief and supporting declaration explaining, on a particularized basis, why continued sealing is justified. The court retains discretion over whether to keep discovery material confidential when it is submitted in connection with a motion or other proceeding. The order states that the court is unlikely to seal or otherwise protect material introduced as evidence at trial.

Challenges and Privilege

A party may object to a confidentiality designation in writing before trial. If the parties cannot promptly resolve the dispute, counsel must present it to the court under the court's individual practices. The order also provides a similar process for seeking additional disclosure limits.

If privileged or attorney-work-product material is inadvertently disclosed, the disclosure does not waive the privilege or protection under the order. The receiving party must return or destroy the material and certify that it has done so, although it may ask the court to compel production. The producing party must provide a privilege log within five business days after notification that the material was returned or destroyed, and the producing party retains the burden of proving that the material is privileged or protected.

End of the Case and Continuing Effect

Within 60 days after final disposition of the action, including appeals, recipients must return or, with the producing party's permission, destroy confidential discovery material and certify that they kept no copies or reproductions. Counsel specifically retained for the action may keep archival copies of specified litigation materials, but those copies remain subject to the order. The order continues to bind covered persons after the litigation ends, to the extent needed to enforce its obligations or impose contempt sanctions.