Osekavage v. Sam's East, 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 might be disclosed during discovery. The court found good cause for a properly limited confidentiality order governing the pretrial phase of the case.

Protective-order requirements

The order permits a producing party to mark only material that it reasonably and in good faith believes contains certain types of information, including previously undisclosed financial information; information about ownership or control of a nonpublic company; business, product-development, or marketing plans; personal or intimate information; and other categories the court later designates as confidential.

People covered by the order generally may not disclose confidential discovery material except to specified recipients. Those recipients include the parties and certain insurers, counsel and their staff, litigation vendors, mediators or arbitrators who sign a non-disclosure agreement, document authors and addressees, certain witnesses, experts or specialized advisers who sign a non-disclosure agreement, deposition transcription staff, and the court and its personnel.

The material may be used only to prosecute or defend this case and related appeals. It may not be used for business, commercial, competitive, or other litigation purposes. The order does not waive objections to discovery, privilege, or other protections, and it does not decide whether evidence will be admissible at trial.

Sealing and disputes

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

Parties must publicly file redacted versions of confidential court submissions and file unredacted versions under seal. A party may object to a confidentiality designation or request additional disclosure limits, such as an attorneys’-eyes-only restriction, by giving written notice that states the grounds. Unresolved disputes are to be brought to the court under the judge’s individual practices.

Privileged material and end of the case

If privileged or work-product-protected information is accidentally disclosed, the disclosure does not waive the protection under the order. The receiving party must return or destroy the material within five business days after notice and provide a certification. The producing party must then provide a privilege log, and the receiving party may ask the court to order production. The producing party retains the burden of establishing that the material is privileged or protected.

Within 60 days after the final disposition of the case, including appeals, recipients must return or, with the producing party’s permission, destroy confidential material and certify that they have not retained copies or other reproductions. Specifically retained attorneys may keep archival copies of certain case-related materials, but those copies remain subject to the order. The order continues after the litigation ends, and the court retains jurisdiction to enforce it and impose contempt sanctions.