Hapag-Lloyd Aktiengesellschaft

Background

The parties, through their lawyers, jointly requested a protective order under Federal Rule of Civil Procedure 26(c). They sought protection for nonpublic, commercially sensitive, competitively sensitive, personal, and intimate information that might be disclosed during discovery. The court found good cause for a tailored confidentiality order governing the pretrial phase of the case.

What the Order Does

The order permits a producing party to mark only information that it reasonably and in good faith believes falls within specified categories, including previously undisclosed financial information, information about ownership or control of a nonpublic company, business and marketing plans, product-development information, and personal or intimate information. The producing party may later designate previously produced material as confidential by written notice and must provide replacement copies bearing the designation within two business days.

People subject to the order generally may not disclose confidential discovery material except as the order permits. Authorized recipients include the parties and their insurers, counsel and litigation-support personnel, outside vendors, mediators or arbitrators, document authors and recipients, potential witnesses, experts, deposition stenographers, and the court. Certain recipients must first receive the order and sign a nondisclosure agreement.

Confidential discovery material may be used only to prosecute or defend this case and related appeals. The order also permits disclosure in response to a lawful subpoena or other compulsory legal process, subject to notice to the producing party when reasonably possible. Recipients must take precautions against unauthorized or accidental disclosure.

Court Filings and Challenges

A party filing confidential discovery material must publicly file a redacted version and file the unredacted version under seal in accordance with the court’s rules. A party seeking sealing must submit an application and supporting declaration explaining specifically why sealing is justified. The order warns that the court may unseal documents if the required findings are not made and that confidential treatment is unlikely for discovery material introduced at trial.

A party may object to a confidentiality designation or request additional disclosure limits, such as an attorneys’-eyes-only restriction, before trial. If the parties cannot resolve the issue, they must bring the dispute to the court under the applicable individual practices.

Duration and Enforcement

Within 60 days after final disposition of the case, including appeals, recipients generally must return or destroy confidential discovery material and certify that they have not retained copies or other reproductions. Lawyers specifically retained for the case may keep archival copies of specified case materials, but those copies remain subject to the order. The order continues after the litigation ends, and the court retains jurisdiction to enforce its obligations and impose sanctions for contempt.

Judge Robert W. Lehrburger ordered the parties and other persons with actual notice of the order to comply. The order does not itself determine that any designated material is confidential, does not waive objections or privileges, and does not decide whether evidence is admissible at trial.