Doe 1 v. McAleenan

Background

The parties submitted competing proposed amended protective orders based on the court’s model order for litigation involving patents, highly sensitive confidential information, and trade secrets. They agreed on some revisions but disputed others.

Court’s rulings on disputed provisions

- Section 3 (scope): The court rejected defendants’ proposal to protect only information that had been authorized for release into the public domain. The court found no good reason to protect information that was already public but had not been subject to a prior release authorization. It adopted the model-order language excluding information already in the public domain. - Section 5.3 (accidental failure to designate): The model order allowed a party to correct an accidental failure to designate information and preserve protection if the correction was timely. The court rejected defendants’ proposal to define timely correction as correction made upon becoming aware of the failure. The court said disputes about protection and accidental disclosure would be decided case by case and adopted the model-order language. - Section 6.2 (meet and confer): The court adopted the parties’ agreed revisions requiring a designating party to review challenged designations, reconsider them, and explain why any designation it retained should remain. The court rejected plaintiffs’ additional proposal requiring the designating party to discuss challenged designations with the appropriate authority or authorities. - Sections 7.3 and 7.4 (highly confidential attorney-eyes-only information): The court found defendants’ proposed revisions unnecessary because the agreed revision to Section 7.1 already required protected material to be stored securely and made accessible only to authorized people. The court adopted plaintiffs’ proposed narrower categories of people who could receive highly confidential attorney-eyes-only material. It rejected defendants’ proposal to exclude certain outside-counsel employees, court reporters and videographers, and people who already knew the information unless a court order allowed access. - Sections 11/13 (accidentally produced privileged or protected material): The court adopted revisions reflecting procedures from its October 8, 2019 order for discovery disputes involving documents defendants produced and later sought to claw back. - Sections 12.3/14.3 (filing protected material): The court adopted the model-order language concerning filing protected material under seal. It stated that defendants had not shown good cause to modify the local rule or keep documents out of the public record after sealing was found unwarranted. The court also noted that defendants would need to show a compelling reason to seal such materials if they were later used with a dispositive motion. - Section 13/15 (final disposition): The court adopted most of defendants’ proposed revisions, but rejected one revision that would have relieved defendants from certain obligations. The court found that provision unwarranted for documents produced by plaintiffs and irrelevant to defendants’ own designated documents, which defendants could retain or destroy after final disposition unless a statute or regulation required otherwise.

Disposition

The court adopted the agreed revisions, adopted certain proposals from each side, rejected the specified proposals, and entered the amended protective order. The order was signed by Judge Virginia K. Demarchi.