Bytemark, Inc. v. Xerox Corp.

Background

Bytemark, Inc. sued Xerox Corp., ACS Transport Solutions, Inc., Xerox Transport Solutions, Inc., Conduent Inc., and New Jersey Transit Corp. The parties stipulated to a proposed protective order because they expected that some information related to the action would be sensitive and confidential. The order applies to discovery materials, including documents, deposition testimony and exhibits, interrogatory responses, admissions responses, production responses, and other information obtained through the Federal Rules of Civil Procedure or other legal process. It also governs trial proceedings and hearings.

Protection Levels and Access

The order permits a producing party to designate material as “Confidential,” “Highly Confidential—Attorneys’ Eyes Only,” or “Highly Confidential—Source Code” when the party reasonably and in good faith believes the material contains qualifying nonpublic information. Confidential material may include proprietary, financial, marketing, commercially sensitive, or sensitive personal information. Attorneys’-eyes-only material is extremely sensitive information whose disclosure would create a substantial risk of serious harm that less restrictive measures could not avoid. Source-code material covers computer code and related information whose disclosure would create the same type of substantial risk.

Confidential material may be provided to specified employees who sign the required acknowledgment, counsel and their staff, certain insurers, the court, court reporters, stenographers, qualified experts and consultants, and certain witnesses. Attorneys’-eyes-only and source-code material generally may be accessed by outside counsel and their staff, qualified experts and consultants, the court, court reporters, and stenographers. Before disclosing protected information to an expert or consultant, the receiving party must provide the producing party with a signed acknowledgment, the person’s résumé or curriculum vitae, business affiliation, and current and past expert or consulting relationships. The producing party has ten calendar days to object for good cause; further disclosure then requires a court order unless the objection or a related motion is not timely pursued.

Use, Disclosure, and Source Code

Protected information may be used only to conduct discovery, prepare for pretrial proceedings, and try this action. It may not be used for business, commercial, competitive, or other litigation purposes. Recipients must protect the information against unauthorized possession, use, or disclosure and must promptly notify the producing party if unauthorized access or disclosure occurs.

The order provides procedures for designating deposition testimony. A party may make a designation during the deposition or within thirty calendar days after receiving the final transcript. If no designation is made within that period, the transcript becomes nonconfidential, although the transcript and video receive attorneys’-eyes-only treatment during the designation period. Source code must be inspected on a secured computer in a secured room without internet or network access, and the receiving party generally may not copy or transfer it. Limited paper copies may be requested when reasonably necessary for court filings, expert reports, depositions, or trial, subject to the order’s restrictions.

Privilege and Sealing

Under the order, disclosure of material later claimed to be privileged does not waive attorney-client privilege, work-product protection, or another applicable protection. Upon request or discovery that privileged material was produced, the receiving party must return the material and its copies within five days. The receiving party may later challenge the privilege claim by motion.

The order also requires a party filing attorneys’-eyes-only material under seal to file a redacted version within three days. A party filing documents under seal must simultaneously submit a letter brief and supporting declaration explaining, on a particularized basis, why continued sealing is justified. The court retains discretion over whether to keep designated material confidential when it is submitted in connection with a motion or proceeding and states that it is unlikely to seal material introduced into evidence at trial.

Disposition and Effect

The court entered the protective order. It requires destruction of protected discovery within thirty calendar days after final disposition of the action, subject to limited retention of litigation files and specified work product. The obligations survive termination of the action, and the court retains jurisdiction to resolve disputes concerning the use of information disclosed under the order. The order does not expand or alter the proper scope of discovery or prevent the parties from seeking additional protection or objecting to production on other grounds.