Dow Jones & Company, Inc. v. Perplexity AI, Inc.

What the order does

The court entered an agreed Confidentiality and Protective Order governing documents, information, testimony, and other materials exchanged by the parties or received from nonparties through discovery. It applies during the pretrial phases of the case, including discovery, depositions, motion practice, pleadings, transcripts, and exhibits. It does not govern proceedings during trial, although it covers testimony at pretrial hearings and other judicial proceedings.

Levels of protection

The order allows producing parties or nonparties to designate material as:

- Confidential: Material not reasonably believed to be public that contains sensitive financial, business, research, technical, strategic, or personal information whose disclosure could harm privacy or business interests. - Highly Confidential: Confidential material so sensitive that it requires extraordinary protection, including trade secrets or information whose disclosure could create a substantial risk of serious harm that less restrictive measures could not avoid. - Highly Confidential–Inspection Data: A category to be defined in a separate agreement for source code and other extremely sensitive electronic data, including training data.

The order permits each party to designate up to three in-house lawyers to access Highly Confidential Information, but those lawyers may not have competitive decision-making or editorial decision-making responsibilities. Designated in-house lawyers may not directly inspect Highly Confidential–Inspection Data, although they may review non-verbatim information about that data unless the producing party gives written consent.

Who may receive protected information

Subject to the order’s conditions, Confidential Information may be disclosed to personnel helping prepare the case, in-house and outside counsel and their support staff, document authors and custodians, qualified experts, the court and court personnel, deposition officers, witnesses, jury or trial consultants, professional vendors, mediators, settlement officers, and other people the parties agree to in writing. Highly Confidential Information is available to a narrower group, generally excluding ordinary party personnel and limiting in-house access to designated in-house counsel who sign the required certification. Highly Confidential–Inspection Data is limited further and may not be directly reviewed by designated in-house counsel.

Before protected information is disclosed to an expert, counsel must obtain the expert’s written agreement to follow the order. For testifying experts and certain non-testifying consultants, counsel must provide advance notice, the certification, and the expert’s current curriculum vitae and employer information. The producing party may object and seek court relief under the order’s stated procedures.

Designation challenges and filing under seal

A receiving party may challenge a designation or a failure to designate by written notice stating the specific reasons. The parties must first confer directly and in good faith. If they cannot resolve the dispute, the receiving party may move for a redesignation within the specified period. Until the court rules, the material is treated at the highest confidentiality level requested by a party or nonparty. The party making the highest designation bears the burden of proving that the designation is proper.

Protected material filed with the court, and filings that disclose it, must be filed under seal until further order, consistent with the court’s rules. The parties must use best efforts to minimize sealing, file a redacted public version the same day, and file a public letter identifying what was submitted under seal. A party that believes a document was improperly sealed may ask the court to unseal it; the document remains sealed while that request is pending.

Other protections and obligations

Protected information may be used only to prosecute, defend, or attempt to settle this case. A recipient who makes an unauthorized disclosure must promptly notify the producing party, try to retrieve the copies, inform the unauthorized recipient of the order, and request a signed confidentiality certification. An inadvertent failure to designate material does not alone waive protection if corrected promptly.

The order also provides that an inadvertently produced privileged document may be requested back without waiving the attorney-client privilege or work-product protection. The receiving party generally must return or destroy the document and copies within five business days of a proper request, while preserving the right to ask the court to compel production on grounds other than the inadvertent production itself.

If another case’s subpoena or court order seeks protected material, the recipient must notify the producing party and the person who issued the subpoena or order and cooperate with reasonable efforts to protect the material. The order does not authorize disobedience of another court’s lawful directive.

Duration and disposition

The protective order survives the end of the case unless modified or dissolved by written permission from the producing party or further court order. Within 60 days after final termination of the litigation, protected material must be returned or destroyed at the producing party’s option, subject to stated exceptions for backup media and certain litigation work product retained by outside counsel. The court retains jurisdiction over the order’s terms and conditions while the litigation is pending.

Disposition

Judge Katherine Polk Failla ordered the agreed protective order on August 1, 2025. This order addresses discovery confidentiality and does not decide the parties’ underlying claims or defenses.