Belaustegui v. American City Business Journals, Inc.

Background

The parties, through counsel, 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 produced or disclosed during discovery. The court found good cause for an appropriately tailored confidentiality order governing the pretrial phase of the action.

Confidentiality designations

The order defines “Discovery Material” as information of any kind produced or disclosed during discovery. A producing party may designate material as “Confidential” only when it reasonably and in good faith believes the material includes previously undisclosed financial information, information about ownership or control of a nonpublic company, business or marketing plans, product-development information, personal or intimate information, or another category the court later protects.

The order establishes procedures for marking confidential material, including marking documents and providing redacted copies for public use. Deposition testimony and exhibits may be designated during the deposition or within 30 days afterward. 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.

Permitted disclosures and use

Confidential material may be disclosed only to categories listed in the order. These include the parties and certain insurers, counsel and their litigation staff, outside vendors working on the case, mediators or arbitrators, people identified on a document as its author or recipient, potential witnesses, experts and specialized advisers, deposition stenographers, and the court and its support personnel. Witnesses, experts, mediators, and arbitrators must first sign the required nondisclosure agreement, and counsel must retain those agreements.

Recipients may use confidential material 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 regarding its own documents or information. It also permits production in response to a lawful subpoena or other compulsory legal process, subject to notice requirements and the producing party's opportunity to object.

Court filings and challenges

A party filing confidential material under seal must publicly file a redacted version and file the unredacted version under seal. The party must also submit a letter brief and supporting declaration explaining, on a particularized basis, why continued sealing is justified. The order states that the court may unseal material if the required findings are not made and retains discretion over whether material submitted in connection with a motion or other proceeding receives confidential treatment. It warns that material introduced at trial is unlikely to remain sealed.

A party may object to a confidentiality designation or request additional disclosure limits, such as attorneys'-eyes-only treatment, before trial. If the parties cannot promptly resolve the dispute, counsel must bring it to the court under the judge's individual practices.

Disposition and effect

Judge Paul G. Gardephe ordered the stipulated confidentiality agreement and protective order. Within 60 days after final disposition of the action, including appeals, recipients generally must return or destroy confidential material and certify that they kept no copies or summaries. Litigation counsel may retain limited archival copies, but those copies remain subject to the order. The order continues after the litigation ends, and the court retains jurisdiction to enforce its obligations and impose contempt sanctions.