Bridgeport Music, Inc. v. Tufamerica, Inc.

Background

The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c). They sought protection for nonpublic and competitively sensitive information that could be disclosed during discovery. The court found good cause for an appropriately limited order governing the pretrial phase of the case.

Confidentiality designations

The order defines “Discovery Material” as information produced or disclosed during discovery. A producing party may designate only material that it 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; personal or intimate information about an individual; or another category that the court later protects.

For most discovery material, the producing party or its lawyer must clearly mark the protected portions as “Confidential” and provide a version for future public use with the confidential information redacted. Deposition testimony and exhibits may be designated during the deposition or within 30 days after it ends. During that 30-day period, the entire deposition transcript must be treated as confidential. A producing party may also later designate material that was initially produced without a confidentiality designation.

Limits on disclosure and use

People subject to the order may disclose confidential discovery material only to the categories listed in the order. These include the parties and certain insurers; counsel and their litigation staff; outside vendors; mediators or arbitrators who sign a nondisclosure agreement; people identified as recipients of a document; potential witnesses who sign a nondisclosure agreement; experts and other specialized advisers who sign a nondisclosure agreement; deposition transcription providers; and the court and its personnel.

Recipients may use confidential discovery material only for prosecuting or defending this case and related appeals. They may not use it for business, commercial, competitive, or other litigation purposes. The order does not restrict a party's rights concerning that party's own documents or information.

The order requires recipients to take precautions against unauthorized or accidental disclosure. It permits disclosure in response to a lawful subpoena or other compulsory process, subject to notice to the producing party when reasonably possible. Within 60 days after the final resolution of the case, including appeals, recipients generally must return or destroy the confidential material and certify that they have not kept copies or other reproductions. Specifically retained litigation lawyers may keep archival copies of certain case materials, but those copies remain subject to the order.

Court filings, challenges, and enforcement

A party filing documents under seal must also file a letter brief and supporting declaration explaining on a particularized basis why continued sealing is justified. The court retains discretion over whether to keep confidential discovery material confidential when it is submitted in connection with a motion or other proceeding. The order warns that the court is unlikely to seal material introduced as evidence at trial merely because it was previously designated confidential.

A party may object to a confidentiality designation before trial by giving written notice that specifically explains the objection. A party seeking additional disclosure limits, such as an attorneys'-eyes-only restriction, may likewise give written notice explaining the request. Unresolved disputes are to be presented to the court under its individual practices.

The protective order continues after the litigation ends. The court retains jurisdiction over people subject to the order as needed to enforce its obligations or impose contempt sanctions. The attached nondisclosure agreement requires anyone receiving protected material to acknowledge the order, agree not to disclose the material outside the litigation, return it at the end of the litigation, and accept the court's jurisdiction over disputes concerning the agreement.

Ruling

Judge Paul G. Gardephe entered the stipulated confidentiality agreement and protective order on April 9, 2020. The opinion does not decide the underlying claims or the admissibility of any evidence.