Boot v. Complex Media, 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 could be disclosed during discovery. The court found good cause for an appropriately tailored order governing the pretrial phase of the case.

Confidentiality designations

The order permits a producing party—the person or entity providing discovery—to designate only information that it reasonably and in good faith believes is confidential. Listed categories include 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.

A producing party may designate especially sensitive business or financial information as “Confidential—Attorneys’ Eyes Only” when disclosure beyond the persons authorized by the order could cause irreparable injury. The order establishes different groups of permitted recipients for ordinary confidential material and Attorneys’ Eyes Only material. These groups include counsel and their assigned staff, certain parties and insurers, service providers, mediators or arbitrators, document authors and recipients, witnesses, experts, consultants, deposition stenographers, and the court and its personnel. Some witnesses, experts, consultants, mediators, and arbitrators must first sign a nondisclosure agreement.

Use, challenges, and court filings

Recipients may use confidential discovery 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 waive objections to discovery, privilege, or other protections, and it does not decide whether evidence will be admissible at trial.

The order provides procedures for correcting a missed confidentiality designation, objecting to a designation, and requesting additional disclosure limits. It also requires a party filing confidential material with the court to publicly file a redacted version and submit the unredacted version under seal. A party filing under seal must also provide a letter brief and supporting declaration explaining why sealing is justified. The order states that the court may later unseal material and is unlikely to seal or otherwise protect material introduced into evidence at trial merely because it was previously designated confidential.

Return, continuing effect, and ruling

Within 60 days after final disposition of the action, including appeals, recipients generally must return or destroy confidential discovery material and certify that they have not kept copies or other reproductions. Counsel retained for the action may keep certain archival case files, but any confidential material in those files remains subject to the order. The order continues after the litigation ends, and the court retains jurisdiction as needed to enforce it or impose contempt sanctions.

Judge Paul G. Gardephe ordered the parties and all other persons subject to the order to comply with these requirements. The order applies to the parties, their corporate parents, successors and assigns, representatives, agents, experts, consultants, third parties providing discovery, and other persons with actual or constructive notice of the order.