Sumotext Corp. -v- Zoove, Inc.

Background

Sumotext filed an administrative motion asking the court to lift the protective order for all deposition transcripts previously designated “Attorneys’ Eyes Only,” or AEO. Sumotext said it intended to use deposition testimony to impeach testimony and refresh witnesses’ memories at trial. It argued that the defendants could no longer maintain their AEO designations because they had not filed motions to seal the deposition transcripts. Sumotext also argued that some transcripts had never been formally designated under the procedures in the protective order.

Designation challenge

The court found that Sumotext had provided no evidence that the defendants failed to properly designate the transcripts. The defendants submitted deposition cover pages showing at least compliance with the requirement that transcripts containing protected material include a clear legend on the title page.

The protective order required a party challenging a confidentiality designation to give written notice, explain the basis for the challenge, and meet and confer in good faith with the designating party. Court intervention was permitted only after that process, unless the designating party was unwilling to participate in a timely manner. Sumotext said it had asked the defendants to review the transcripts and identify testimony that should remain protected at trial, but the defendants refused. The defendants responded that Sumotext had not identified specific portions of AEO testimony it wanted to use.

Ruling

The court denied Sumotext’s motion to lift the protective order as to all deposition transcripts. It concluded that the parties had not engaged in a good-faith meet and confer, making the dispute not ready for judicial intervention. The court agreed that Sumotext, as the party challenging the designations, had to identify with reasonable specificity the portions of testimony that Mr. Miller needed to review for trial. After that, the defendants would bear the burden of showing good cause for continued protection.

The court also clarified that the AEO designation did not limit Sumotext’s ability to introduce protected material at trial for impeachment or another valid evidentiary purpose. Any use of protected material at trial would be governed by a separate agreement or court order. The defendants would have to move to seal any deposition testimony they did not want disclosed at trial.