Brandon v. NPG Records, Inc.

Background

The parties requested a protective order under Federal Rule of Civil Procedure 26(c). A protective order is a court order governing the handling and disclosure of information exchanged during discovery. The parties, through counsel, agreed to the proposed terms, and the court found good cause for an appropriately tailored order covering the pretrial phase of the action.

Confidentiality Designations

The order permits a producing party—the person or party providing discovery materials—to designate as “Confidential” only material that it reasonably and in good faith believes includes previously undisclosed:

- Financial information, including profitability reports or estimates, percentage fees, design fees, royalty rates, minimum guarantee payments, sales reports, and sales margins; - Information about ownership or control of a nonpublic company; - Business plans, product-development information, or marketing plans; - Personal or intimate information about an individual; or - Another category that the court later gives confidential status.

A producing party or any party to the litigation may designate information as “Outside Counsel’s Eyes Only” if it considers the information so competitively sensitive that other people should not learn it. That material may be disclosed only to specified outside counsel and their litigation staff, the court and relevant personnel, court reporters and similar recording personnel, certain document authors or recipients, or another person with the producing party’s prior written consent. A confidentiality designation itself has no evidentiary value and is not admissible against another party.

Permitted Disclosures and Use

Confidential material may be disclosed to the parties, their insurers and insurer counsel, litigation counsel and staff, litigation vendors, mediators or arbitrators who sign the required nondisclosure agreement, certain document authors or recipients, potential witnesses who sign the agreement, experts or other specialized advisers who sign the agreement, deposition stenographers, and the court and its personnel. Before disclosure to a covered mediator, witness, or expert, the person must receive the order and sign the required nondisclosure agreement.

Recipients may use confidential material only to prosecute or defend this action and any appeals. The order does not waive objections to discovery, privilege, or other protection, and it does not decide whether any material is admissible at trial. It also does not prevent a party from producing protected material in response to lawful compulsory process, provided the party gives the required notice to the producing party.

Challenges, Court Filings, and Return of Materials

A party may object to a confidentiality designation before trial by giving written notice stating the grounds. If the parties cannot resolve the dispute, counsel must bring it to the court under the court’s applicable practices. A party seeking additional disclosure limits may use a similar procedure.

When filing protected discovery material or papers that disclose it, the parties must publicly file a redacted version and file the unredacted version under seal with the required application and supporting declaration. The order warns that the court may unseal documents if the necessary particularized findings are not made and that the court is unlikely to keep material confidential once it is introduced as evidence at trial.

Within 60 days after final disposition of the action, including appeals, recipients must return confidential material or destroy it with the producing party’s written permission, and certify that they retained no copies or other reproductions. Counsel specifically retained for the action may keep an archival copy of certain litigation materials, but those copies remain subject to the order. The order survives the end of the litigation, and the court retains jurisdiction to enforce it and impose contempt sanctions.

Ruling

On December 3, 2019, Judge Gregory H. Woods issued the stipulated confidentiality agreement and protective order. The order binds the parties, their officers, agents, employees, attorneys, people acting with them, and anyone else with actual notice of the order. It does not decide the merits of the underlying dispute.