Lewandowski v. Chipotle Mexican Grill, Inc.

Background

Camille Lewandowski and Chipotle Mexican Grill, Inc., through counsel, agreed to a confidentiality and protective order for discovery in this action. Discovery is the pretrial exchange of information and documents. The parties asked the court to protect nonpublic and competitively sensitive information that might be disclosed during that process. The court found good cause for an appropriately limited order governing the pretrial phase. The opinion does not describe the underlying claims or the parties’ positions on those claims.

Confidential Information

The order permits a producing party—the party or person providing discovery—to designate as confidential only material that it reasonably and in good faith believes falls within specified categories. Those categories include previously undisclosed financial information; information about ownership or control of a nonpublic company; previously undisclosed business plans, contracts, leases, product information, business procedures or policies, product-development information, or marketing plans; personal or intimate information about an individual; and any other category the court later protects.

The producing party generally must clearly mark confidential material and provide a version for public use with the confidential information redacted. Deposition testimony and exhibits may be designated during the deposition or within 30 days afterward. During that 30-day period, the entire deposition transcript must be treated as confidential. A producing party may also correct an earlier failure to designate material before trial by notifying prior recipients in writing.

Permitted Disclosure and Use

Confidential discovery material may be disclosed only to specified people, including the parties and their insurers, counsel and certain counsel staff, outside vendors working on the case, mediators or arbitrators, document authors and recipients, potential witnesses, experts or other specialized advisers, deposition transcription providers, and the court and its personnel. Witnesses, experts, mediators, and arbitrators who receive the material generally must first sign a nondisclosure agreement.

Recipients may use confidential material only to prosecute or defend this action and related appeals. They may not use it for business, commercial, competitive, or unrelated litigation purposes. The order does not waive objections to discovery, privileges, or arguments about whether evidence may be admitted at trial. It also permits production in response to a lawful subpoena or other compulsory legal process, subject to notice to the producing party when reasonably possible.

Sealing and Challenges

A party filing material under seal must also publicly file a redacted version and submit a letter brief and supporting declaration explaining, on a particularized basis, why continued sealing is justified. The order states that the court may unseal material if the required specific findings are not made and warns that the court is unlikely to seal material introduced as evidence at trial. Parties may object to confidentiality designations or request additional disclosure limits, such as attorneys’-eyes-only treatment, and must bring unresolved disputes to the court.

Disposition and Effect

Judge Valerie E. Caproni ordered the parties and other persons subject to the order to follow its terms, subject to possible contempt sanctions. Within 60 days after final disposition of the action, including appeals, recipients generally must return or destroy confidential discovery material and certify that they retained no copies or summaries, although specifically retained attorneys may keep certain archival case files that remain subject to the order. The order continues after the litigation ends, and the court retains jurisdiction as necessary to enforce it or impose contempt sanctions.