United States v. Ford

Background

The United States brought this action against Mark Ford, Mark Ford Stables, Inc., Mark Ford Stage Road Property, Inc., and Ford Equine, Ltd. The parties, through counsel, requested a protective order under Federal Rule of Civil Procedure 26(c) for nonpublic and competitively sensitive information that might be disclosed in discovery. The court found good cause for an appropriately tailored confidentiality order governing the pretrial phase of the action.

Protected Information

The order allows a producing party to designate only material that it reasonably and in good faith believes includes previously undisclosed:

- Financial information, including profitability reports or estimates, percentage fees, design fees, royalty rates, minimum guarantee payments, sales reports, and sales margins; - Information about ownership or control of a nonpublic company; - Business plans, product-development information, or marketing plans; - Personal or intimate information about an individual; or - Another category of information that the court later gives confidential status.

The producing party or its counsel must clearly mark protected material and provide a version with confidential information redacted for future public use. Deposition testimony may be designated during the deposition or within 30 days after the deposition. During that 30-day period, the entire deposition transcript must be treated as protected.

Permitted Disclosure and Use

Protected discovery may be disclosed to specified categories of people, including the parties and their insurers, counsel and litigation-support staff, outside vendors, mediators or arbitrators, certain people identified on a document, potential witnesses, experts and specialized advisers, deposition stenographers, and the court. Mediators, arbitrators, witnesses, experts, and specialized advisers must first sign the required nondisclosure agreement. Counsel must retain those agreements and produce them to opposing counsel before the person testifies or when the case ends, whichever comes first.

Recipients may use protected discovery only to prosecute or defend this action 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 its own documents or information.

Court Filings and Challenges

A party filing protected material under seal must also publicly file a redacted version and provide the required letter brief and supporting declaration justifying continued sealing on a particularized basis. The court retains discretion over whether to give confidential treatment to protected material submitted in connection with a motion or other proceeding. The order warns that the court is unlikely to seal or otherwise protect material introduced into evidence at trial.

A party may object to a confidentiality designation before trial by giving written notice stating the grounds for the objection. If the parties cannot resolve the dispute, they must bring it to the court under the court’s individual practices. A party seeking additional disclosure limits, such as an attorneys’-eyes-only designation, must follow a similar procedure.

Privilege and Return of Materials

The order provides that an inadvertent disclosure of material claimed to be protected by attorney-client privilege or attorney work-product protection does not waive or forfeit that protection. After receiving an inadvertent-disclosure claim, the receiving party must return or destroy the material within five business days and provide counsel’s certification. The disclosing party must then provide a privilege log within five business days after being notified of the return or destruction. The receiving party may ask the court to compel production, and the disclosing party retains the burden of establishing the material’s privileged or protected status.

Within 60 days after final disposition of the action, including appeals, recipients must return all protected discovery or destroy it with the producing party’s permission and certify that they retained no copies or other reproductions. Attorneys specifically retained for the action may keep archival copies of specified case 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.

Disposition

The parties stipulated and agreed to the protective order, and the court ordered it entered. This was a discovery and confidentiality order; the opinion does not decide the underlying claims or the admissibility of evidence. United States District Judge Philip M. Halpern signed the order.