Hai v. First Data Corporation

Background

The parties stipulated that certain discovery materials should be treated as confidential and asked the court to enter their agreement as an order. The document is a discovery confidentiality order, not a decision on the merits of the lawsuit.

Confidentiality designations

The order establishes two levels of protection: “CONFIDENTIAL” and “ATTORNEYS’ EYES ONLY.” A producing person or party may use the “CONFIDENTIAL” designation for material that, in good faith, contains sensitive personal information or confidential research, development, commercial, or financial information, or is otherwise believed in good faith to deserve protection. The more restrictive “ATTORNEYS’ EYES ONLY” designation is reserved for information believed in good faith to be actually confidential and to qualify as a trade secret or as so competitively sensitive that it requires extraordinary protection.

Designations must be made on the material or in contemporaneous correspondence when visible marking is impractical. Parties may not routinely designate material without reasonable inquiry. Certain deposition testimony is confidential only if designated during the deposition or within seven business days after the transcript is received; testimony describing a properly designated document receives the same designation.

Use and disclosure limits

Covered material may be used only to prepare for and conduct this litigation, including appeals. “CONFIDENTIAL” material may be disclosed to specified counsel and litigation staff, certain employees of a party, court reporters and photocopying personnel, consultants and experts, and expected witnesses, subject to the conditions in the order. Experts and witnesses must sign the attached confidentiality agreement before receiving such material.

“ATTORNEYS’ EYES ONLY” material may be disclosed to specified counsel and litigation staff, court reporters and photocopying personnel, and consultants or experts who agree in writing to follow the order. The order also states that a party may disclose its own designated materials and that independently obtained material from non-confidential sources is not restricted by the order.

Counsel must keep covered materials secure, mark copies and summaries with the appropriate designation, and take reasonable precautions against unauthorized or accidental disclosure. The order includes exceptions for people who already saw or received a document and for disclosures to the court and its designees.

Court filings and challenges

A party may not file designated material under seal without a separate court order addressing the specific material or portions to be sealed. An application to seal must include affidavits and a legal memorandum addressing the applicable sealing standards, including the authority identified in the order. The order also sets advance-notice procedures when one party intends to use another party’s confidential information.

A party seeking protection greater than the order provides must ask the court for a protective order under Federal Rule of Civil Procedure 26(c). The order preserves objections to discovery, privileges, other protections, and the admissibility of discovery material at trial.

If privileged material is inadvertently produced, the receiving party must promptly return or destroy it after notice. If confidential material is inadvertently disclosed, the producing party may later notify the other parties that it must be treated as confidential. Parties may challenge a designation on grounds other than the inadvertent production itself.

End of litigation and outside requests

At the end of the litigation, confidential material not admitted into evidence must be returned to the originating party or destroyed if the parties agree. The clerk may return or destroy sealed material after the litigation, including appeals. The order remains effective unless modified by a court order or written stipulation filed with the court, and it continues after the litigation ends.

If a recipient receives a subpoena or similar legal demand in another proceeding for covered material, the recipient must notify the producing party within two business days. The recipient generally must not produce the material for at least fourteen days after notice, and must not produce it afterward if the producing party objects unless a court or other legally enforceable order requires production.

Disposition

Pursuant to the parties’ stipulation, Judge P. Kevin Castel ordered the confidentiality agreement on February 28, 2020. The opinion contains no ruling on the underlying claims or defenses.