Goddard v. National Railroad Passenger Corporation

Background

The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c). That rule allows a court, for good cause, to protect information disclosed during discovery. The parties represented that they might need to exchange nonpublic and competitively sensitive information, and the court found good cause for an appropriately tailored order governing the pretrial phase of the case.

Confidentiality Designations

The order defines “Discovery Material” as information of any kind produced or disclosed during discovery. A producing party may designate material as “Confidential” only when it reasonably and in good faith believes the material includes specified categories of information, such as previously undisclosed financial information, information about ownership or control of a nonpublic company, business or marketing plans, product-development information, or personal or intimate information. The court may also give confidential status to another category of information later.

The producing party or its counsel must clearly mark confidential material and provide a version for future public use with the confidential information redacted. Deposition testimony and exhibits 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 producing party may also correct an earlier failure to designate information by notifying prior recipients in writing before trial.

Permitted Disclosures and Use

Confidential discovery material may be disclosed only to persons identified in the order. Those persons include the parties and their insurers, counsel and certain counsel staff, outside vendors working on the case, mediators or arbitrators, specified document recipients, possible witnesses, experts and other specialized advisers, deposition stenographers, and the court and its personnel.

Before receiving confidential material, mediators or arbitrators, possible witnesses, experts, and specialized advisers must receive the order and sign the required nondisclosure agreement. Counsel must retain those agreements and produce them to opposing counsel before the person testifies or when the case ends, whichever comes first. Recipients may use confidential material only to prosecute or defend this case and related appeals, not for business, commercial, competitive, or unrelated litigation purposes.

The order does not waive objections to discovery, privilege, or other protections, and it does not decide whether evidence will be admissible at trial. It also permits disclosure when required by a lawful subpoena, other compulsory process, law, or a government agency with jurisdiction, subject to notice requirements. Persons with access to confidential material must take reasonable precautions against unauthorized or accidental disclosure.

Court Filings and Sealing

A party filing documents under seal must simultaneously file a letter brief and supporting declaration explaining on a particularized basis why continued sealing is justified. When confidential material is filed with the court, the parties must publicly file a redacted version and submit the unredacted version under seal. The court retains discretion over whether to maintain confidentiality for material submitted in connection with a motion or other proceeding. The order warns that material introduced at trial is unlikely to remain sealed or receive confidential treatment, even if it was previously designated or sealed.

Objections, End of Case, and Enforcement

A party may object to a confidentiality designation before trial by giving written notice stating the grounds. A party may also request additional disclosure limits, such as “attorneys’ eyes only,” through the procedures stated in the order. If the parties cannot resolve the dispute promptly, counsel must bring it to the court under the judge’s individual practices.

Within 60 days after final disposition of the action, including appeals, recipients generally must return or destroy confidential material and certify that they have not retained copies or other reproductions. Counsel specifically retained for the case may keep an archival copy of certain litigation materials, but those copies remain subject to the order. The order survives termination of the litigation, and the court retains jurisdiction over covered persons to enforce the obligations and impose sanctions for contempt.

Disposition

Judge Paul G. Gardephe ordered the parties and other covered persons to comply with the stipulated confidentiality and protective order. The opinion addresses discovery confidentiality and enforcement procedures; it does not decide the underlying claims or defenses.