Landauer, Inc. v. Medstar Surgical and Breathing Equipment Company, 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 an appropriately tailored confidentiality order governing the pretrial phase of the case.

Order

The court ordered the parties, their officers, agents, employees, attorneys, people acting with them, and others with actual notice of the order to comply with its terms, subject to contempt. The order covers discovery material designated either “Confidential” or “Confidential – Attorneys’ Eyes Only.” Covered people may not disclose such material except as the order permits.

A producing party may designate material when it reasonably and in good faith believes that it contains previously undisclosed financial information; information about ownership or control of a nonpublic company; nonpublic business, product-development, or marketing information; previously undisclosed vendor, customer, or user identities; personal or intimate information; or another category later given confidential status by the court.

The order provides procedures for marking protected material, including deposition transcripts and exhibits. A producing party may also correct an earlier failure to designate material before trial by giving written notice and providing replacement copies within two business days.

Permitted disclosures and use

Material designated “Confidential” may be disclosed to specified recipients, including the parties, certain owners and insurers, counsel and their support staff, litigation vendors, mediators or arbitrators who sign confidentiality agreements, certain people identified with documents, potential witnesses who sign confidentiality agreements, experts or specialized advisers who sign confidentiality agreements, court reporters, and the court.

“Confidential – Attorneys’ Eyes Only” material is subject to narrower disclosure limits. It may generally be disclosed to court personnel, counsel and necessary law-firm staff, certain document creators or recipients, specified witnesses, litigation-support companies, court reporters, qualified experts or consultants who sign confidentiality agreements, and other people only with the producing party’s written consent or a further court order.

Recipients must use protected material only for prosecuting or defending this action and related appeals. The order does not waive objections to discovery, privilege, or protection, and it does not decide whether evidence will be admissible at trial.

Challenges, court filings, and enforcement

A party may object to a confidentiality designation or request additional disclosure limits before trial. If the parties cannot promptly resolve the dispute, counsel must bring it to the court under the applicable provision of the judge’s individual rules.

When filing protected material or papers that disclose it, the parties must publicly file a redacted copy. A party seeking to file protected material under seal must follow the court’s rules for such applications. The order states that the court may unseal documents unless it makes the required specific findings that sealing is essential and narrowly tailored.

A party responding to a lawful subpoena or other compulsory process may produce protected material if required, but must give the producing party at least 10 days’ written notice. Within 60 days after final disposition of the action, including appeals, recipients must return or, with the producing party’s permission, destroy the protected material and certify that they have not retained copies or other reproductions, subject to an archival-copy exception for attorneys’ case files and work product. The order remains binding after the litigation ends, and the court retains jurisdiction to enforce it or impose contempt sanctions.

Disposition

Judge Paul A. Engelmayer issued the stipulated protective order on June 12, 2020. The opinion text addresses confidentiality and discovery procedures; it does not decide the underlying merits of the parties’ dispute.