Sulzer Mixpac AG v. DXM Co. Ltd.

Nature of the Order

The court entered a protective order under Federal Rule of Civil Procedure 26(c), which permits protection for discovery when good cause exists. The order addresses documents, testimony, electronically stored information, and other information produced, withheld from production, disclosed, or generated during discovery or required disclosures in this case.

The order is procedural and does not decide the merits of Sulzer Mixpac AG’s claims or the defendants’ defenses. The opinion states that the parties anticipated that discovery could include confidential, proprietary, trade-secret, and commercially sensitive information and requested rules governing its treatment.

Protected Information

The order establishes two designations:

- “CONFIDENTIAL” covers information containing or reflecting confidential, proprietary, or commercially sensitive information. - “CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” also called “AEO,” covers sensitive industry information or extremely confidential information whose disclosure could cause economic harm or a significant competitive disadvantage. The order identifies examples including nonpublic trade secrets, pricing and financial information, sales information, customer or supplier information, business plans, marketing strategies, product-development information, engineering and testing documents, employee information, and nonpublic prosecution information.

The order does not provide blanket protection for every discovery disclosure. Producing parties must designate material carefully and in good faith, and must promptly withdraw or change a designation if the material does not qualify for the protection or level of protection asserted. Publicly disseminated material is excluded from the definition of protected material.

Who May Access the Information

Protected material may be used only for this case or a related appeal. “CONFIDENTIAL” material may be disclosed to specified outside counsel and litigation staff, certain named representatives, qualified outside experts and consultants, court reporters, the court and court personnel, specified vendors, mock jurors who agree to confidentiality, mediators and their staff, and other persons with the producing party’s prior written consent. The order names Hans Peter Brack for Sulzer Mixpac AG, Durok Jung for DXM Co. Ltd., and Sun Song for Dentazon Corporation as representatives who may receive “CONFIDENTIAL” material after agreeing to be bound by the order.

AEO material may be disclosed to a narrower group, principally outside counsel who are not involved in competitive decision-making, qualified outside experts and consultants, certain litigation-support personnel, court reporters, the court and court personnel, mediators, and persons approved in writing by the producing party. AEO material generally may not be disclosed to the parties’ business representatives.

Before disclosure to specified representatives, experts, or consultants, the receiving party must provide information about the person, including the person’s name and address, curriculum vitae, current employer and title, and employment and consulting relationships. The producing party then has five business days to object for good cause. The person must also sign the order’s agreement to be bound before receiving protected material.

Protected material must generally be stored securely in the United States and may not be exported or made available to foreign nationals who are not lawfully admitted for permanent residence, subject to the order’s exception allowing “CONFIDENTIAL” material to be seen by the parties, including because the plaintiff and one defendant are foreign nationals. The order also permits a producing party to use or disclose its own protected material without restriction from the order.

Challenges, Subpoenas, and Court Filings

A receiving party need not challenge a confidentiality designation when it is made. A later challenge must identify the material and explain the objection. The parties must first confer in good faith. If they cannot resolve the dispute, the receiving party may ask the court to rule on the designation. The material remains protected unless the producing party withdraws the designation or the court rules that the designation is improper.

If another court or proceeding compels disclosure of protected material, the receiving party must promptly notify the producing party and the person or entity that issued the subpoena or order, and must cooperate with reasonable efforts to protect the material. If the producing party timely seeks protection, the receiving party generally must not produce the material before the issuing court rules, unless the producing party permits disclosure.

Protected material may not be placed on the public record without the producing party’s written permission or a court order. If it is submitted in a court filing, it must be filed under seal in accordance with the Southern District of New York’s rules and electronic-filing procedures.

Privilege and Mistakes

The order provides that an inadvertent production of material protected by attorney-client privilege, work-product protection, or another applicable protection does not waive that protection if the producing party promptly requests return of the material after learning of the mistake. Receiving parties must return or destroy the requested material, subject to the order’s provision allowing them to keep limited identifying information for use in a motion concerning production.

An inadvertent failure to designate material also does not waive protection if the producing party gives notice within 14 days after learning of the mistake and reproduces the material with the proper designation within seven days after notice. The later designation applies going forward and does not disqualify people who reviewed the material before it was properly marked.

Duration and Enforcement

The confidentiality obligations continue after the case ends unless the producing party agrees in writing that the material is no longer protected or a court orders otherwise. Within 90 days after final disposition, each receiving party must return or destroy the producing party’s discovery material, subject to limited archival retention by outside counsel. The order defines final disposition as an order, mandate, or dismissal finally terminating the action with prejudice, including all appeals.

The order also applies to protected material produced by nonparties. The Southern District of New York retains jurisdiction to interpret and enforce the order after the case ends, and the court may modify the order by further order. Judge Loretta A. Preska entered the order on June 23, 2025.