American Eagle Outfitters, Inc. v. Amazon.com Services LLC

Background

The parties submitted a stipulated protective order concerning information exchanged during discovery. They anticipated that discovery could include confidential, private, proprietary, personal, customer, or commercially sensitive information. The order creates procedures for designating, using, challenging, filing, and ultimately returning or destroying that material.

Terms of the Order

The order establishes two main levels of protection: “CONFIDENTIAL” and “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Protected material may be used only to prosecute, defend, or attempt to settle this action, and generally may not be used for business, competitive, or other litigation purposes.

“CONFIDENTIAL” material may be disclosed, subject to stated conditions, to the court, certain employees and in-house counsel, outside counsel, experts, consultants, professional vendors, mediators, and witnesses. “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” material is subject to greater restrictions. It may generally be disclosed only to outside counsel, certain designated in-house counsel who are not involved in competitive decision-making, approved experts and consultants, professional vendors, mediators, court personnel, court reporters, and certain persons who already possessed or knew the information.

The order requires advance information and objection procedures before protected material is disclosed to designated in-house counsel, experts, or outside consultants. It also permits parties to challenge confidentiality designations after meeting and conferring. Until the court resolves a challenge, the material must continue to receive the designated level of protection.

The order addresses inadvertent failures to mark confidential material and inadvertent production of privileged or otherwise protected material. After notice of an inadvertent production, the receiving party generally must return or destroy the material within ten days, while retaining the ability to challenge the asserted privilege or protection under the order’s procedures.

Protected material may not be filed publicly without written permission from the designating party or a court order. The order expressly states that protected material may be filed under seal only through a court order authorizing sealing of the specific material. It also states that use of the material at trial may be governed by a separate order.

After final disposition of the action, receiving parties generally must return or securely destroy discovery material within 60 days and certify that they have done so. Counsel may retain certain archival litigation materials, but any protected material in those materials remains subject to the order.

Court’s Action and Limitations

The parties stipulated to the order, and the court ordered it on May 5, 2025. Judge Jesse M. Furman emphasized that the court had not reviewed the documents referred to in the stipulation and therefore made no finding that any documents were confidential. Any confidentiality determination would be made, if necessary, through document-by-document review. The court also declined to approve any provision that would allow the parties to file documents under seal without prior court authorization.