Bodett v. G6 Hospitality

Nature of the Order

The parties submitted a proposed stipulated protective order, and the court ordered it. A protective order governs how information exchanged during discovery may be designated, used, disclosed, challenged, and handled after the litigation ends. This order does not resolve the parties’ underlying claims.

Confidential Information

A party or nonparty may designate documents as confidential when it reasonably and in good faith believes they contain nonpublic, proprietary business information or other information requiring confidential treatment to protect a legitimate business or other interest. Documents may be marked “confidential” or “attorneys’ eyes only.” Deposition testimony may be designated during the deposition or within 14 days after receipt of the final transcript, although missing that period does not automatically waive the right to designate testimony when otherwise permitted by the order.

“Attorneys’ eyes only” treatment may be used for highly sensitive nonpublic financial information, customer information, or business plans. Those materials generally may be disclosed only to qualifying lawyers, certain experts and specialized advisers who sign nondisclosure agreements, specified other recipients, or someone approved in writing by the producing party.

Permitted Disclosures and Use

Confidential documents may be used only in this action, except that a party may use its own confidential documents without that limitation. The order permits disclosure to the court and its staff, counsel and assigned staff, people identified as authors or recipients on the document, court reporters and videographers, certain witnesses who first sign nondisclosure agreements, professional litigation-support vendors, mediators and arbitrators, parties and certain employees assisting with the action, and qualifying experts or specialized advisers.

A party serving a subpoena on a nonparty must provide the nonparty with the protective order and the court’s local rules. Anyone who receives confidential information but is not entitled to receive it must make reasonable efforts to retrieve it.

Designation Challenges and Court Filings

A party or nonparty that mistakenly produces a document without a confidentiality designation may correct the error within seven days after discovering it. A party challenging a designation must give written notice stating the grounds for the challenge. The designating party or nonparty then has seven calendar days to consider changing the designation. Until the court resolves an unresolved challenge, the material must continue to receive the protection required by the existing designation.

The order does not authorize filing documents under seal. Confidential documents may be filed only under the court’s rules and local rules. A party intending to use another party’s or a nonparty’s confidential document at a hearing or trial must promptly provide notice so that the other party or nonparty may seek relief from the court.

Privileged Materials and Security

An inadvertent disclosure of privileged or work-product-protected material does not waive the protection in this or another proceeding. After notice, the receiving party must promptly sequester, return, delete, or destroy copies and may not make further use of the material, while retaining the ability to challenge the asserted privilege or protection. The order requires compliance with Federal Rule of Civil Procedure 26(b)(5)(B) and states that it is intended to provide the maximum protection allowed by Federal Rule of Evidence 502(d) or applicable state rules.

Each party must make reasonable efforts to protect confidential documents. A party that learns of a confidentiality breach must promptly notify the producing party or nonparty about the breach’s scope and nature and make reasonable efforts to remedy it.

After the Litigation

Within 60 days after the action, including any appeals, ends, each party must return or destroy confidential documents and notify the disclosing or producing party or nonparty that it has done so. Lawyers may continue to retain their work product, pleadings, court-filed documents, and complete copies of specified testimony and related exhibits, subject to the order’s continuing requirements. The obligations survive the end of the action, and the court retains jurisdiction as necessary to enforce the order or impose sanctions for contempt.

Ruling

Judge Dale E. Ho ordered the stipulated protective order. The court also stated that it retains discretion over whether to provide confidential treatment to information redacted, sealed, or designated as confidential in opinions and orders, and may allow disclosure or modify the order in the interest of justice.