First Data Merchant Services LLC v. MM Development Company

Background

The court issued a proposed consent protective order by agreement of the parties and with the court’s approval. The order governs documents, deposition materials, interrogatory responses, admissions, and other information produced, exchanged, or inspected during discovery or voluntary information sharing in the litigation. It also covers materials produced by non-parties.

Confidentiality designations

A person or party that produces discovery material—or designates material produced by or originating with a non-party—may designate material as “Confidential” if it has a good-faith belief that the material contains non-public, confidential, proprietary, financial, technical, commercial, legal, or otherwise protected information. The order provides procedures for marking documents and electronic media and for designating deposition transcripts or portions of transcripts.

A party challenging a designation must first communicate with counsel for the designating party and attempt to resolve the dispute. If the dispute remains unresolved, the challenging party may file a motion asking the court to remove the designation, supported by details about the challenged material and a declaration confirming compliance with the required discussion process. Until the designating party withdraws the designation or the court rules that the material is not confidential, the material must continue to be treated as confidential.

Permitted uses and disclosures

Confidential material may be used or disclosed only for this litigation and as otherwise permitted by the order, a court order, or law. The order identifies permitted recipients, including counsel and their litigation staff, the parties and necessary current personnel, the court and its personnel, court reporters, jurors, certain service providers, experts and consultants who sign a confidentiality agreement, agreed mediators, certain witnesses, authors and recipients of the material, and the non-party that produced the material.

The order also permits disclosure to counsel and support staff in the California Action and the Colorado Action identified in the order, provided those persons sign the required confidentiality agreement. Certain other recipients may not receive confidential material until they have read the order and agreed in writing to follow it. A party seeking disclosure to someone outside the permitted categories must request permission from the designating party and, if necessary, seek court intervention. Disclosure is prohibited unless the court grants the request.

Court filings, challenges, and subpoenas

Briefs, pleadings, and other court filings containing or referring to confidential material must be filed under seal according to the court’s procedures. The order states that a separate court order addressing the specific materials is required before documents may be filed under seal, and that a sealing application must address the governing standards, including the standards discussed in Lugosch v. Pyramid Co. of Onondaga. The order also preserves the separate privacy-redaction requirements of Federal Rule of Civil Procedure 5.2.

If a non-permitted person seeks confidential material through a subpoena or other compulsory process, the receiving party must notify counsel for the designating party and provide a copy of the demand, generally at least fourteen days before the proposed disclosure. The designating party is responsible for seeking an order restricting or preventing production. If confidential material is improperly disclosed, the responsible party must promptly notify the designating party, try to retrieve the material, and try to prevent further unauthorized disclosure.

Duration, privilege, and court action

The confidentiality restrictions continue during and after the litigation, including any appeals. After final termination, counsel generally must return or destroy additional confidential material within 90 days after written notice, subject to the order’s provisions concerning retained court materials, attorney work product, and computer backup tapes.

The order states that it does not require production of privileged or otherwise protected information. It also provides that inadvertent production does not waive attorney-client privilege, work-product protection, or other applicable protections. The order does not establish that any material is relevant or admissible and does not affect a party’s other privileges or rights.

Ruling

Judge P. Kevin Castel approved and issued the consent protective order. The opinion does not decide the underlying claims or the admissibility of any evidence.