Jacobson v. Live Nation Entertainment

Nature of the Order

The court entered a stipulated protective order proposed through counsel for the plaintiffs and defendants. The order governs discovery in the related actions identified in the document. It is intended to protect information that qualifies for confidential treatment under applicable legal principles, not to provide blanket protection for every disclosure or discovery response.

Information Covered

The order covers discovery materials designated either “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Confidential information includes trade secrets and other confidential research, development, or commercially sensitive information that has not been made public. Highly confidential information is information whose disclosure to another party or nonparty would create a substantial risk of serious and irreparable harm to the producing party or its clients.

The order states that discovery may involve trade secrets, operating plans, market analyses, nonpublic contracts, negotiating positions, business negotiation strategies, financial information, and private information. A party or nonparty designating material must limit the designation to material that qualifies for protection. Mass or indiscriminate designations are prohibited, and unjustified or improper designations may lead to sanctions.

Use and Disclosure Limits

A receiving party may use protected material only to prosecute, defend, or attempt to settle the litigation. The material must be stored securely, with access limited to authorized persons.

“CONFIDENTIAL” material may generally be disclosed, when reasonably necessary for the litigation, to outside counsel and their staff, the receiving party’s officers, directors, employees, and in-house counsel, certain experts and professional vendors who sign the required agreement, the court and its personnel, court reporters, certain witnesses, mediators, settlement officers, and insurers who sign the required agreement.

“Highly Confidential – Attorneys’ Eyes Only” material may be disclosed to up to three qualifying in-house counsel for each party who sign the required agreement, as well as certain categories of persons otherwise authorized to receive confidential material. The order also provides procedures for deposition transcripts, including temporary treatment of the entire transcript as highly confidential until 30 days after counsel receives the final transcript, unless the parties agree otherwise or specific portions are designated.

Challenges, Subpoenas, and Privilege

A party or nonparty may challenge a confidentiality or privilege designation at any time consistent with the case schedule. Counsel must first meet and confer, and the designating party bears the burden of persuasion if the dispute is presented to the court. The material remains protected under the designation while the challenge is pending unless the designation is withdrawn or waived.

If protected material is subpoenaed or ordered produced in another litigation, the receiving party must promptly notify the designating party and the person or entity that issued the subpoena or order. The order also establishes procedures when a party is asked to produce a nonparty’s confidential information.

The order provides that an inadvertent disclosure of attorney-client privileged, work-product, or other protected material does not waive the protection to the maximum extent permitted by law. After notice of an inadvertent disclosure, the receiving party must stop using the material, segregate it, and take reasonable steps to return or delete it, subject to the order’s provisions concerning backup media and challenges to the designation.

Filing Under Seal and Trial Use

The protective order does not itself authorize filing protected material under seal. A party seeking sealing must follow the court’s individual practices and local rules and obtain a separate court order addressing the specific material. Documents should be redacted rather than filed entirely under seal when redaction is feasible.

The order does not govern the use of protected material at trial. It states that protected material used or introduced as a trial exhibit generally becomes public unless the trial judge makes the required findings supporting continued sealing before trial.

Duration, Final Disposition, and Enforcement

The order generally applies through the final disposition of the litigation, defined as the conclusion of appellate proceedings or, if no appeal is taken, the expiration of the time to appeal. The parties remain contractually bound by the order after final disposition, with enforcement to occur through a separate action after the case proceedings are complete.

Within 60 days after final disposition, receiving parties must return or destroy protected material and provide written certification, subject to exceptions allowing counsel to keep archival copies of specified litigation materials and allowing retention on routine disaster-recovery backup media. Violations may result in measures including contempt proceedings or monetary sanctions.

Ruling

Judge Arun Subramanian ordered the stipulated protective order based on the stated good cause. The opinion is a discovery-related procedural order; it does not decide the underlying antitrust claims or otherwise resolve the merits of the litigation.