Goldman v. Cox Media Group, LLC

Background

Justin Goldman sued Cox Media Group, LLC and the other named Cox-related defendants. Cox Media Group, LLC also asserted a counterclaim against Goldman. The parties agreed to a confidentiality agreement and proposed stipulated protective order covering this action and related consolidated cases. The order concerns documents and information that a party believes contain private, competitive, financial, personal, proprietary, or commercially sensitive information.

Protective-order requirements

The order permits a party to designate specific nonpublic discovery materials as “CONFIDENTIAL” when the party has a good-faith belief that disclosure could cause identifiable harm and that the materials should be used only in connection with the action. Confidential materials may be disclosed only to specified “Qualified Persons,” including the court, counsel and their staff, court reporters, the parties and certain personnel, authors or recipients of the materials, experts and consultants, witnesses under specified conditions, and certain support vendors.

Confidential information may be used only for the action. People receiving it under specified categories must receive the order and, in some circumstances, sign a certification agreeing to be bound by it. The order also establishes procedures for challenging a confidentiality designation, handling confidential deposition testimony, responding to subpoenas, correcting inadvertent disclosures, and returning or destroying confidential materials at the end of the action. Outside counsel may retain copies for archival purposes.

The order protects against waiver of attorney-client privilege, work-product protection, or another applicable protection when privileged material is inadvertently produced, provided the producing party promptly gives written notice. After notice, the receiving party must return or destroy the material and may not use or disclose it, subject to the stated procedure for seeking a court ruling.

Court’s action and limits

The court ordered the stipulated protective order on March 6, 2020. It stated that the order binds the parties to treat materials they designate as confidential under the order, but the court had not reviewed the underlying documents and made no finding that they were actually confidential.

The court also declined to approve any provision that would allow the parties to file documents under seal without a prior court order. If a party wants to use confidential material in a filing, hearing, or trial, the parties must first try to remove the designation, prepare an acceptable redacted version, or agree to seek filing under seal. Any unresolved issue may be presented to the court, and the party seeking continued confidentiality bears the burden of showing that the material should be withheld from the public record.

Judge Jesse M. Furman’s order concerns discovery confidentiality and access to judicial records; it does not decide the merits of Goldman’s claims or Cox Media Group, LLC’s counterclaim.