Nolan v. International Business Machines Corporation

Background

The plaintiffs are Michael Nolan, Karla Bousquet, Jay Zeltzer, and Teresa Cook. The defendant is International Business Machines Corporation. Through their lawyers, all parties requested a protective order under Federal Rule of Civil Procedure 26(c) for nonpublic and competitively sensitive information that might be disclosed during discovery. The court found good cause for an appropriately limited order governing the pretrial phase of the case.

Confidentiality Rules

The order permits a producing party to label as confidential only material that it reasonably and honestly believes includes certain previously undisclosed information, such as financial information, information about ownership or control of a nonpublic company, business or marketing plans, product-development information, or personal or intimate information. The court may also grant confidential status to other categories later.

People subject to the order generally may not disclose confidential discovery material except as the order permits. Permitted recipients include the parties and their insurers, counsel and litigation-support personnel, outside vendors, certain document recipients, potential witnesses, experts and specialized advisers, deposition stenographers, mediators or arbitrators, and the court. Some recipients must first receive the order and sign a nondisclosure agreement.

Confidential material may be used only to prosecute or defend this case and related appeals. It may not be used for business, commercial, competitive, or other litigation purposes. Parties may object to confidentiality designations or request additional disclosure limits, and unresolved disputes may be presented to the court under its individual practices.

Sealing and Privilege Provisions

A party filing confidential material with the court must publicly file a redacted version and file the unredacted version under seal. The party must also submit a letter brief and supporting declaration explaining, on a particularized basis, why continued sealing is justified. The order states that the court retains discretion over whether to give confidential treatment to material submitted in connection with a motion or proceeding and warns that trial evidence is unlikely to remain sealed.

The order also addresses information accidentally disclosed while subject to attorney-client privilege or attorney work-product protection. The disclosure does not itself waive those protections. After receiving a claim of inadvertent disclosure, the receiving party must return or destroy the information within five business days and provide a certification. The producing party must then provide a privilege log, while the receiving party may ask the court to order production; the producing party retains the burden of establishing privilege or protection.

Disposition and Effect

The court entered the stipulated confidentiality and protective order. Within 60 days after final disposition of the case, including appeals, recipients generally must return or, with the producing party’s permission, destroy confidential material and certify that they retained no copies or summaries. Counsel specifically retained for the case may keep an archival copy of specified litigation materials, which remains subject to the order.

The order survives termination of the litigation. The court retains jurisdiction over people subject to the order as necessary to enforce its obligations or impose sanctions for contempt. Judge Philip M. Halpern signed the order on August 5, 2025.