China United Lines, LTD v. Amazon.com Services LLC

Background

The parties agreed to confidentiality terms for documents and information exchanged during discovery in this action. The court found good cause for an appropriately limited protective order. The order applies to the parties, their representatives and agents, third-party experts, people providing discovery, and others subject to the order who have actual or constructive notice of it.

Confidentiality Designations

The order permits producing parties to designate discovery material as “Confidential” when it contains private, secret, or restricted information that should be kept confidential. Examples include previously nonpublic financial information, contract terms, and information received from third parties under disclosure restrictions.

A producing party may designate material “Attorneys’ Eyes Only” when, in good faith, disclosure could cause significant reputational or business harm. Examples include nonpublic business plans, product-development information, marketing plans, trade secrets, competitively sensitive information, and information covered by Chinese data-security laws.

The order establishes procedures for marking documents and designating deposition testimony. Deposition testimony and information are treated as Confidential for ten days after the deposition closes unless designated otherwise. Designating parties must review and release nonconfidential portions of transcripts within thirty days of receiving the final transcript, unless additional time is agreed upon. A party may also later correct an inadvertent failure to designate material before trial by notifying prior recipients in writing.

Who May Receive Protected Material

Confidential material may be disclosed to specified recipients, including the parties and people working for them who need to know, outside counsel and related staff and vendors, certain people identified in documents, mediators or arbitrators, anticipated witnesses, experts, deposition transcription providers, and the court and its staff. Witnesses and experts must first sign the required nondisclosure agreement.

Attorneys’ Eyes Only material may be disclosed to a narrower group. In addition to the categories listed for Confidential material, the order permits disclosure to specified in-house counsel: Teresa Zhu for China United Lines, LTD, and Tanisha Creed, Stacey LaRiviere, and Casey O’Brien for Amazon.com Services LLC. The parties may mutually agree to add or change the designated in-house counsel.

Challenges, Privilege, and Use Restrictions

A party may object to a confidentiality designation or request additional disclosure limits by written notice before trial. If the parties cannot promptly resolve the dispute, they must bring it to the court under the judge’s individual practices.

If privileged or attorney-work-product material is inadvertently disclosed, the disclosure does not waive the protection. Once the producing party makes an inadvertent-disclosure claim, the recipient must stop reviewing the material except by court order, return or destroy all copies within five business days, and confirm the destruction in writing.

Protected material may be used only to prosecute or defend this action and related appeals. It may not be used for business, commercial, personal, competitive, or other litigation purposes. The order does not waive objections to discovery, waive privilege, or decide whether any document, testimony, or other evidence is admissible at trial.

Sealing and Later Handling

A party seeking to file protected discovery must follow the court’s procedures for filing under seal. No document may be filed under seal without a further court order addressing the specific material. A sealing request must include supporting affidavits and a legal memorandum addressing the applicable standards, including the standards discussed in Lugosch v. Pyramid Co. of Onondaga. The order also sets advance-notice and response periods when one party seeks to use another party’s confidential information.

The court retains discretion over whether to give confidential treatment to designated material. The order continues after the litigation ends. Within thirty days after final disposition, protected discovery and copies must generally be returned or destroyed, although counsel may retain copies subject to the order’s continuing restrictions. The court retains jurisdiction to enforce the order and impose contempt sanctions for violations.

Disposition

Judge P. Kevin Castel so ordered the stipulated protective order. This order addresses discovery confidentiality and enforcement procedures; the opinion does not resolve the merits of China United Lines, LTD’s claims or Amazon.com Services LLC’s defenses.