Theallet v. H&M Hennes and Mauritz, L.P.

Background

The plaintiffs are Sophie Theallet and Sofia T. Inc. The defendants are H&M Hennes and Mauritz, L.P., and H&M Hennes and Mauritz, GBC AB. Through their attorneys, all parties agreed to a confidentiality agreement and protective order under Federal Rule of Civil Procedure 26(c). The court found good cause to issue an appropriately tailored order for the pretrial discovery phase of the case.

What the Order Covers

The order applies to discovery materials designated as “Confidential.” It permits designation of information that the producing party 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; information about the products involved in the litigation whose disclosure could cause substantial and irreparable business injury; unrelated product information included in discovery materials; personal or intimate information; and other categories later given confidential status by the court.

The producing party must clearly mark protected portions of discovery materials and provide a redacted copy for future public use. Deposition testimony 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 by giving written notice and providing replacement copies within two business days.

Limits on Disclosure and Use

Confidential discovery materials may be disclosed only to specified recipients, including the parties, their insurers and insurance counsel, counsel and their assigned support staff, litigation vendors, mediators or arbitrators, certain people identified on documents, potential witnesses, experts and specialized advisers, deposition stenographers, and the court. Witnesses, experts, mediators, and arbitrators must first receive the order and sign a non-disclosure agreement. Recipients may use the materials only to prosecute or defend this case and related appeals, not for another purpose or proceeding.

People who receive confidential materials must take precautions against unauthorized or accidental disclosure. Within 60 days after final disposition of the case, including appeals, recipients must return or destroy the materials and certify that they kept no copies or summaries, subject to an exception allowing specifically retained attorneys to keep archival copies of certain case files and work product. Any such archival copies remain subject to the order.

Court Filings and Challenges

The order does not waive objections to discovery, waive privilege or other protection, or decide whether evidence is admissible at trial. It also states that the court has not determined that any designated material is actually confidential and retains discretion over whether to grant confidential treatment.

A party filing confidential discovery material or papers containing it 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 providing a particularized justification. The order warns that the court is unlikely to seal material introduced at trial and may unseal documents if the required findings are not made.

A party may object to a confidentiality designation or request additional disclosure limits by written notice stating the grounds. If the parties cannot resolve the dispute, counsel must bring it to the court under the court’s procedures. The order remains effective after the litigation ends, and the court retains jurisdiction to enforce its obligations and impose contempt sanctions. Judge Gregory H. Woods entered the order on March 31, 2020.