Fischman v. Mitsubishi Chemical Holdings America, Inc.

Background

Jennifer S. Fischman and the defendants stipulated to a protective order for documents, deposition testimony, interrogatory answers, and other materials exchanged in the case. The defendants named in the stipulation were Mitsubishi Chemical Holdings America, Inc.; Mitsubishi Chemical Corporation; Mitsubishi Chemical Holdings Corporation; Nicholas Oliva; and Donna Costa. The order also defined procedures for materials produced by nonparties.

Confidentiality Designations

The agreement allows a producing party to designate materials as “Confidential” when they contain information such as attorney-client communications, attorney work product, internal investigations, proprietary business information, employee or customer information, medical or psychological records, financial data, or other sensitive private information. A party may use the stricter “Confidential—Attorney’s Eyes Only” designation when disclosure to another party could harm personal, commercial, financial, strategic, or business interests, or is substantially likely to cause injury.

The confidentiality protections extend to copies, notes, summaries, and other materials containing information from protected documents. Receiving parties must keep the materials secure and use them only for this case.

Permitted Disclosures and Handling of Protected Information

The order identifies categories of people who may receive confidential materials, including attorneys and their staff, parties and certain employees, experts, litigation-support vendors, document authors, witnesses, and court personnel. Attorney’s-eyes-only materials generally may not be disclosed to the parties themselves, but may be provided to attorneys, their staff, experts, certain vendors, document authors, previously authorized recipients, court personnel, and others as allowed by law or court order.

Before disclosure to specified experts, vendors, or witnesses, the recipient must receive the agreement and agree in writing to follow it. The parties must meet and confer before proposed disclosure to someone outside the listed categories, and an objection prevents disclosure unless a court orders otherwise.

If privileged or otherwise protected information is inadvertently produced, the receiving party must return it and destroy copies when requested, may not use it, and may not argue that the inadvertent production waived the protection. The receiving party may still challenge whether the privilege or protection applies, but may not rely on the inadvertent production as the reason for waiver. The agreement also preserves objections to discovery requests and withheld documents, including the use of privilege logs.

Court Filings and Sealing

The agreement establishes a process for filing documents that contain confidential information. A party generally must file a redacted version while the producing party decides whether to seek sealing. If the producing party timely moves to seal and the motion is granted, the documents or portions covered by the order may be filed under the court’s sealed-filing procedures. If no timely motion is filed, or if the motion is denied, the corresponding unredacted version must be filed. Filings that disclose confidential materials must identify their source.

The parties also must meet and confer if attorney’s-eyes-only materials are proposed for use at trial. If they cannot agree on redaction or removal of the designation, the court will resolve the issue.

Ruling

Judge Jesse Furman ordered the stipulated agreement on February 6, 2020. The court specifically stated that it did not approve any provision that purported to authorize filing documents under seal without a prior court order. The court directed that redacted or sealed filings follow its individual rules and practices and emphasized the presumption favoring public access to judicial documents. The agreement remains effective after the litigation ends, with provisions generally requiring return or destruction of confidential materials within 30 days after completion of the case, subject to the stated exception for attorneys’ legally required files.