Raymond James & Associates, Inc. v. Oramed Pharmaceuticals, Inc.

Background

The parties agreed to confidentiality terms for information and documents exchanged during the pretrial phase of the action. The court found good cause to issue a protective order under Federal Rule of Civil Procedure 26(c), which allows a court to protect parties from improper use or disclosure of discovery materials.

Protective-order requirements

The order permits counsel to designate information as confidential when counsel determines in good faith that protection is needed for proprietary information, trade secrets, or other sensitive nonpublic information. Confidential information may be used only for this litigation. Before disclosing it to authorized people, counsel must explain its confidential status, explain the limits imposed by the order, and obtain a signed agreement to follow the order.

Authorized recipients include the requesting party and counsel, necessary litigation employees, consultants or experts assisting with the case, and the court. The parties are directed to meet and confer if a production requires an “Attorneys’ or Experts’ Eyes Only” designation. A party may challenge another party’s confidentiality designation after making a good-faith effort to resolve the dispute, and may ask the court to resolve an unresolved challenge.

The order provides special requirements for personally identifying information, including Social Security numbers, financial account numbers, passwords, and information that could be used for identity theft. The receiving party must store and share such information securely, and must immediately notify the producing party and cooperate in responding to any data breach.

Under Federal Rule of Evidence 502, an inadvertent or other production of materials protected by attorney-client privilege or work-product protection does not waive that protection in this case or another federal or state proceeding. The order also preserves the parties’ ability to review materials for relevance, responsiveness, and privilege before production.

Filing under seal and end of litigation

The order states that a confidentiality designation does not create a presumption that material may be filed under seal. No document may be filed under seal without another court order addressing the specific material. A sealing request must include affidavits and a legal memorandum addressing the applicable sealing standards, including the standards discussed in Lugosch v. Pyramid Co. of Onondaga and other controlling authority.

Unless the court orders otherwise, a party intending to use another party’s confidential information must give 14 days’ advance notice identifying the material, its general purpose, and acceptable redactions. The party whose information is at issue then has seven days to seek sealing under the order’s procedures. After the litigation ends, confidential information must generally be returned or certified as destroyed within 30 days after entry of a final judgment no longer subject to appeal. Counsel may retain protected working files. The order does not prevent disclosures required by law or a valid subpoena and does not change Federal Rule of Civil Procedure 5.2’s requirements for redacting certain personal information.

Ruling

Judge P. Kevin Castel ordered that these restrictions and procedures apply to information and documents exchanged by the parties during the pretrial phase. The opinion is a discovery-related protective order and does not decide the parties’ underlying claims.