Panzariello v. Botify Inc.

Nature of the Order

The Court entered a stipulated confidentiality order under Federal Rule of Civil Procedure 26(c)(1). The order addresses information that the parties may request or produce in discovery and that could include trade secrets, confidential research and development information, commercial information, personal identifying information, or protected health information.

Confidentiality Categories

The order creates two categories:

- “Confidential” information includes business, operational, technical, and development information whose disclosure could harm a person’s competitive position or violate a confidentiality obligation. It also automatically includes listed personal information and protected health information, such as Social Security numbers, home addresses, telephone numbers, dates of birth, financial account numbers, medical records, and medical testimony. - “Highly Confidential,” also called “Attorney’s Eyes Only,” information includes more sensitive or strategic current or future business or technical trade secrets and plans whose disclosure could significantly harm a person’s competitive position or violate a confidentiality obligation.

Information is excluded from these categories if it is publicly known, was previously known to the recipient without a confidentiality obligation, was lawfully obtained independently of the litigation, or became known through means that did not breach the order.

Designation and Challenges

A person designating information must have a good-faith basis, after reasonable inquiry, for believing that it qualifies for protection. Documents and physical items must be clearly marked. Deposition testimony may be designated on the record or in writing within fourteen days after receipt of the transcript. A missed designation does not waive confidentiality for other materials, and a designation may be withdrawn by written notice.

A party challenging a designation must identify the disputed materials, explain the basis for the challenge, and propose a new designation. The parties must meet and confer. If they cannot resolve the dispute, the proposed new designation takes effect after fourteen days unless the producer files a motion to maintain the original designation. The producer bears the burden of showing that the designation is proper. Until the Court rules, the original designation remains in place.

Use and Disclosure

Covered information may be used only for purposes of this litigation. Confidential information may be disclosed, absent permission or another Court order, to specified lawyers and support staff, certain employees involved in the case, people recording testimony, qualified experts and consultants subject to additional requirements, and the Court and its personnel. Highly Confidential information may be disclosed only to a narrower group, generally excluding the parties’ employees.

Before an expert or consultant receives covered information, that person must sign the order’s undertaking. The retaining party must serve the undertaking on the other parties within fourteen days. At least fourteen days before the first disclosure, the retaining party must identify the expert or consultant and provide a curriculum vitae to the producer. The producer may object for good cause, and unresolved objections must be presented to the Court before disclosure.

The order also allows disclosure to an employee or author of the producer, a person who formerly was affiliated with the producer and authored the information, or a person who received the information before the case began. Disclosure to anyone else requires a reasonable attempt to obtain the producer’s permission and, if permission cannot be obtained, a motion to the Court.

Filing, Disposal, and Other Provisions

The order does not by itself authorize filing anything under seal. A separate order is required, based on the standards identified in Lugosch v. Pyramid Co. of Onondaga. A party intending to file publicly a document designated by another producer must notify the producer at least five business days before filing so the producer may seek sealing.

After the case concludes, each party must promptly return or destroy covered materials as specified in the order and certify compliance in writing. Counsel and the parties may retain one complete set of documents filed with the Court, subject to the order. The obligations concerning Confidential and Highly Confidential information survive the end of the case. The order states that the Court may modify it at any time and will retain jurisdiction over its terms only while the litigation is pending.

Disposition

Judge Katherine Failla entered the stipulated confidentiality order. The opinion text does not decide the parties’ underlying claims or defenses; it governs the handling of discovery information during the litigation.