Fanta v. Apple Inc.

Background

Joseph Fanta and Apple Inc. jointly requested a protective order under Federal Rule of Civil Procedure 26(c). They anticipated that discovery, initial disclosures, and supplemental disclosures might involve confidential, proprietary, trade-secret, medical, psychological, financial, employment, and commercially sensitive information. The court found good cause for the stipulated order.

Order’s requirements

The order defines discovery material broadly to include information, testimony, transcripts, and tangible things produced or generated in connection with discovery or required disclosures. Protected material is information designated either “CONFIDENTIAL” or “CONFIDENTIAL—ATTORNEYS’ EYES ONLY.” The order does not automatically protect every disclosure, and designations must be made in good faith.

Protected material may be used only for this case or a related appeal, not for another lawsuit, patent proceeding, business purpose, or competitive purpose. It must be stored securely in the United States and may not be exported outside the United States or released to a foreign national, even within the United States.

“CONFIDENTIAL” material may generally be shared with outside counsel and staff, up to three necessary representatives of the receiving party, qualifying outside experts or consultants, court personnel, certain litigation-support personnel, mock jurors under confidentiality agreements, the assigned mediator and staff, and others with the producing party’s written consent. “CONFIDENTIAL—ATTORNEYS’ EYES ONLY” material is subject to narrower access, generally limited to qualified outside counsel, certain in-house counsel when the material was produced by the plaintiff, qualifying experts or consultants, court personnel, specified litigation-support personnel, the mediator, and authorized others. Arguments and materials derived from attorneys’-eyes-only information may be shown to qualifying mock jurors, but the original materials may not.

The order establishes notice and objection procedures before protected material is disclosed to certain representatives, experts, or consultants. A producing party generally has fourteen days to object after receiving the required notice. The parties must then meet and confer, and an unresolved objection may be presented to the court through expedited discovery-dispute procedures.

Additional provisions

A party may challenge a confidentiality designation later rather than immediately. Until the designating party withdraws the designation or the court rules otherwise, the material remains protected. The order also requires notice and an opportunity to seek protection when protected material is subpoenaed.

Protected material generally may not be filed publicly without the producing party’s written permission or a court order, and the parties must follow the local rule governing sealed filings. Promptly requested return of inadvertently produced privileged material does not waive the privilege. The order also provides procedures for correcting an inadvertent failure to designate material and for responding to unauthorized disclosures.

Within ninety days after final disposition, each party must return or destroy the producing party’s discovery material, subject to the order’s archival exception for certain litigation papers and work product. The confidentiality obligations continue after the case ends, and the court retains jurisdiction to resolve disputes under the protective order.

Disposition

Pursuant to the parties’ stipulation, Magistrate Judge Virginia K. DeMarchi ordered the stipulated protective order on April 24, 2023. The ruling concerned discovery-management and confidentiality procedures; it did not resolve the merits of Fanta’s claims against Apple.