Cicciarella v. Califia Farms, LLC

Background

The parties, through counsel, jointly requested a protective order under Federal Rule of Civil Procedure 26(c). They sought protection for nonpublic and competitively sensitive information that might be disclosed during discovery. The court found good cause for an appropriately tailored confidentiality order governing the pretrial phase of the action.

Confidential information

The order permits a producing party—including a nonparty responding voluntarily or to a subpoena—to designate material as confidential when the party reasonably and in good faith believes it contains certain information. Covered categories include previously undisclosed financial information; information about ownership or control of a nonpublic company; business plans, product development information, product formulations or ingredients, and marketing plans; personal or intimate information; information protected from public disclosure by law or regulation; and other categories later given confidential status by the court.

The producing party must mark or otherwise identify confidential material and provide a version redacted for future public use. Deposition exhibits and transcript portions may be designated during the deposition or within 30 days afterward. During that 30-day period, the entire deposition transcript must be treated as confidential. A party may also later designate material that was initially produced without a confidentiality designation, subject to providing replacement versions within two business days.

Permitted disclosures and use

Confidential discovery material may be disclosed to the parties, their insurers and insurer counsel, litigation counsel and assigned support staff, outside vendors assisting with the case, the court, and certain other listed recipients. Those other recipients include mediators or arbitrators, authors and addressees of documents, potential witnesses, and experts or other specialized advisers. Mediators, arbitrators, witnesses, experts, and specialized advisers must first receive the order and sign the required nondisclosure agreement.

Recipients may use confidential discovery material only to prosecute or defend this action and related appeals. The order does not restrict a party’s use of its own information. It also does not waive objections to discovery, privileges, or other protections, and it does not decide whether evidence will be admissible at trial.

Court filings and disputes

A party filing confidential discovery material or papers that reveal it must publicly file a redacted copy and file the unredacted version under seal. A party seeking sealing must submit an application and supporting declaration providing a particularized justification. The order warns that the court may unseal material if the required specific findings are not made.

A party may object to a confidentiality designation before trial by giving written notice explaining the grounds. If the parties cannot promptly resolve the dispute, counsel must bring it to the court under the court’s individual practices. Similar procedures apply to requests for additional disclosure limits, such as an attorneys’-eyes-only designation.

Privilege, conclusion of the case, and enforcement

The inadvertent production of privileged or otherwise protected material does not waive the protection if the producing party asserts the privilege within seven days after discovering the production. The parties must confer about any dispute, and unresolved disputes may be presented to the court. While the issue is pending, the material must be treated as confidential and not disclosed to people who had not already received it.

Within 60 days after final disposition of the action, including appeals, recipients must return or destroy confidential discovery material and certify that they have not retained copies or other reproductions. Litigation counsel may retain archival copies of specified case-related materials, but those copies remain subject to the order. The order continues after the litigation ends, and the court retains jurisdiction to enforce its obligations and impose contempt sanctions.

Ruling

Judge Cathy Seibel entered the parties’ stipulated confidentiality and protective order on November 26, 2019. This order concerns discovery and confidentiality procedures; the opinion text does not resolve the merits of the underlying dispute.