Zoulas v. Department of Education

Background

The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c). They sought protection for nonpublic and competitively sensitive information that could be disclosed during discovery. The court found good cause for issuing a tailored confidentiality order for the pretrial phase of the action.

Protective-order requirements

The order covers discovery material—information produced or disclosed during discovery—that a producing party designates as confidential. A producing party may designate only material it reasonably and in good faith believes includes previously undisclosed financial information; information about ownership or control of a nonpublic company; business, product-development, or marketing plans; personal or intimate information; or another category that the court later gives confidential status.

Confidential material must be clearly marked, and a public copy must be provided with the confidential information redacted. Deposition transcripts are treated as confidential for 30 days after the deposition, subject to the order's designation procedures. A producing party may also correct an earlier failure to designate information by giving written notice and providing replacement copies within two business days.

Permitted disclosures and use

The order allows disclosure of confidential material to specified recipients, including the parties and their insurers; counsel and their staff; outside vendors serving the litigation; mediators or arbitrators; people identified as recipients of a document; potential witnesses; experts and other specialized advisers; deposition stenographers; and the court and its personnel. Mediators, arbitrators, witnesses, experts, and specialized advisers must first receive the order and sign the required nondisclosure agreement. Recipients may use the material only to prosecute or defend this action and appeals from it, not for another purpose or proceeding.

The order does not waive objections to discovery or privileges, and it does not decide whether any document, testimony, or other evidence is admissible at trial. The court also stated that its order did not itself determine that designated material was confidential and that the court retained discretion over whether to give material confidential treatment. It warned that material introduced at trial was unlikely to remain sealed even if previously sealed or designated confidential.

Court filings, objections, and enforcement

A party filing confidential discovery material or papers disclosing it must publicly file a redacted version and file the unredacted version under seal. A party seeking sealing must submit an application and supporting declaration providing a particularized justification. The order allows parties to object to confidentiality designations or request additional restrictions, such as attorneys'-eyes-only treatment, and directs unresolved disputes to the court under its individual practices.

Within 60 days after the final disposition of the action, including appeals, recipients must return or destroy confidential material and certify that they kept no copies or other reproductions, subject to the order's exception allowing litigation counsel to retain archival copies of specified case materials. The order survives termination of the litigation. The court retained jurisdiction to enforce the order and impose contempt sanctions.

Disposition and effect

Judge Gregory H. Woods ordered the parties and other persons with actual notice to comply with the stipulated confidentiality and protective order. The opinion does not resolve the parties' underlying claims or defenses.