Sol De Janeiro USA Inc. and Sol De Janeiro IP v. American Instinct Inc. d/b/a…

Background

The parties, through counsel, stipulated to a protective order under Federal Rule of Civil Procedure 26(c). They represented that discovery would involve confidential documents or information and that public disclosure could harm the producing person or a third party owed a duty of confidentiality.

Protective-order terms

The order permits a producing person to designate as “Confidential” only information whose disclosure is restricted by law or could harm business, commercial, financial, or personal interests. Listed examples include previously undisclosed financial information; information about ownership or control of a nonpublic company; business, product-development, or marketing plans; and personal or intimate information.

The order establishes procedures for marking confidential material and for designating deposition testimony. A producing person may also correct an earlier failure to designate material as confidential before trial by notifying prior recipients in writing. A party may object to a confidentiality designation or request additional limits, such as attorneys’ eyes only treatment, and unresolved disputes are to be presented to the court under its individual rules.

Confidential discovery material may be disclosed to the parties, insurers and their counsel, case counsel and support staff, litigation vendors, certain mediators or arbitrators, people identified on a document, certain witnesses, experts and consultants, deposition transcription personnel, and the court. Some recipients must first receive the protective order and sign a nondisclosure agreement. The material may be used only to prosecute or defend this action and any appeals, not for business, commercial, or competitive purposes.

The order also addresses third-party confidentiality obligations, subpoenas and other compulsory process, personally identifying information, data breaches, and the return or destruction of confidential material after the case ends. Willful violations may result in contempt of court, and the court retains jurisdiction to enforce the order and impose contempt sanctions.

Ruling and limits on sealing

Judge Jesse M. Furman ordered the stipulated protective arrangement. The court expressly stated that it had not reviewed the documents and therefore made no finding that any particular document or information was confidential. Confidentiality must be evaluated document by document if necessary, subject to the presumption favoring public access to judicial documents.

The order does not authorize the parties to file documents under seal without a prior court order. Anyone seeking to file redacted material or material under seal must follow the court’s individual rules and obtain permission first. The order also warns that confidential treatment is unlikely for discovery introduced at trial or used to support or oppose a summary-judgment motion.