EPI-USE AMERICA, INC. v. TE CONNECTIVITY CORPORATION

Background

The parties, through counsel, jointly requested a protective order under Federal Rule of Civil Procedure 26(c). They sought protection for nonpublic and competitively sensitive information that might be disclosed during discovery. The court found good cause for an appropriately tailored confidentiality order governing the pretrial phase of the action.

Confidential information

The order permits a producing party or non-party to designate discovery material as “CONFIDENTIAL” when it reasonably and in good faith believes the material includes previously undisclosed financial information, ownership or control information about a nonpublic company, business plans, product-development or marketing information, personal or intimate information about an individual, or another category the court later protects. Designating parties must take reasonable care to limit confidentiality designations to material that qualifies for protection.

The order establishes procedures for marking documents and designating deposition testimony. A producing party may correct an earlier failure to designate material before trial by notifying prior recipients in writing. The order does not waive objections to discovery, privileges, or protections from discovery, and it does not decide whether evidence will be admissible at trial.

Disclosure and use limits

Recipients may disclose confidential discovery material only to specified people, including the parties, their insurers and related counsel, litigation counsel and support staff, litigation vendors, mediators or arbitrators, certain people identified on documents, potential witnesses, experts and consultants, deposition stenographers, and the court. Some recipients must first receive the order and sign a nondisclosure agreement. The material may be used only to prosecute or defend this action and related appeals, not for business, competitive, or unrelated litigation purposes.

The order also provides procedures for confidentiality objections and requests for additional limits, such as an “attorneys’ eyes only” designation. It permits disclosure in response to a lawful subpoena or other compulsory process, subject to notice to the producing party when reasonably possible.

Court filings and end of the case

A party filing confidential material must publicly file a redacted version and file the unredacted version under seal. A sealing request must be supported by a letter brief and declaration explaining, on a particularized basis, why continued sealing is justified. The court retains discretion over whether to keep material confidential when it is submitted in connection with a motion or proceeding, and stated that it is unlikely to seal material introduced as evidence at trial.

Within 60 days after the final disposition of the action, including appeals, recipients generally must return or destroy confidential discovery material and certify that they have done so. Counsel specifically retained for the action may keep archival copies of specified case and work-product materials, but those copies remain subject to the order. The order survives termination of the litigation, and the court retains jurisdiction to enforce it and impose contempt sanctions.

Ruling

Judge John P. Cronan entered the stipulated confidentiality agreement and protective order with the parties’ consent. This order addresses discovery confidentiality and does not decide the merits of the parties’ claims or defenses.