Perez v. Mexican Hospitality Operator LLC

Background

The plaintiffs—Tuan Perez, Ana Dorantes, Daniele Flumiani, Adrian Hernandez, Jesus Nava, Fabio Reyes, and Angel Tepole—brought this action on behalf of themselves and others similarly situated against Mexican Hospitality Operator LLC doing business as Cosme, Cosme NY LLC doing business as Cosme, Enrique Olvera, and Daniela Soto-Innes. The parties, through their lawyers, jointly requested a protective order under Federal Rule of Civil Procedure 26(c) to protect nonpublic and competitively sensitive information that might be disclosed during discovery.

Order

The court found good cause for a tailored confidentiality order covering the pretrial phase of the case and ordered the parties and other people with notice of the order to comply, subject to possible contempt sanctions.

The order permits a producing party to mark only portions of discovery material as confidential when the party reasonably and in good faith believes the material includes previously undisclosed financial information, ownership or control information about a nonpublic company, business or marketing plans, personal or intimate information, or other proprietary, trade-secret, sensitive, nonpublic, or court-designated information. The plaintiffs' and opt-in plaintiffs' payroll records, time records, and tip-distribution records may not be marked confidential, although records and information concerning non-plaintiffs remain eligible for confidential treatment.

Confidential discovery material may be disclosed only to listed categories of recipients, including the parties, certain insurers and their counsel, counsel and litigation support providers, mediators or arbitrators, certain people identified in documents, deposition or trial witnesses, experts and other specialized advisers, deposition transcription personnel, and the court. Witnesses and experts must first receive the order and sign the required nondisclosure agreement. Confidential material may be used only to prosecute or defend this action and related appeals.

The order explains procedures for marking deposition testimony and exhibits, correcting an inadvertent failure to mark material as confidential, objecting to a confidentiality designation, and requesting additional limits such as attorneys'-eyes-only treatment. It also provides procedures for filing confidential material with the court: a public redacted filing, an unredacted filing under seal, and a particularized application and supporting declaration seeking sealing. The court warned that it was unlikely to keep material confidential when the material was introduced at trial unless the required findings for sealing were made.

The order does not waive discovery objections or privileges and does not decide whether any material is confidential or admissible at trial. It permits disclosure when required by a subpoena, other compulsory process, law, or a government agency, subject to notice to the producing party when possible. Within 60 days after the final disposition of the action, including appeals, recipients generally must return or destroy confidential material and certify that they have done so, although specifically retained litigation counsel may keep certain archival case files subject to the order. The confidentiality obligations continue after the litigation ends, and the court retains jurisdiction to enforce the order and impose contempt sanctions.

Disposition

Judge John G. Koeltl entered the stipulated protective order. The order governed confidentiality and discovery procedures; it did not resolve the underlying claims or defenses.