DeLaRosa v. MV Public Transportation, Inc.

Background

The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c). They sought rules governing nonpublic and competitively sensitive information that could be disclosed during discovery in this action. The parties agreed to the proposed terms through counsel, and the court found good cause for an appropriately tailored confidentiality order covering the pretrial phase.

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 one of the listed categories: previously undisclosed financial information; previously undisclosed information about ownership or control of a nonpublic company; previously undisclosed business plans, product-development information, or marketing plans; personal or intimate information about an individual; or another category the court later gives confidential status.

For most discovery materials, the producing party or its counsel must clearly mark the protected portions and provide a version with the confidential information redacted for future 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 later designate material that was produced without a confidentiality designation. After written notice, the material must be treated as confidential, and the producing party must provide replacement versions bearing the designation within two business days.

Permitted disclosures and use

Confidential discovery material may be disclosed only to the parties, their insurers and insurer counsel, counsel retained for the action and their assigned staff, outside vendors or service providers working on the action, certain mediators or arbitrators, people identified as recipients of a document, potential witnesses, experts or other specialized advisers, deposition transcription personnel, and the court and related court personnel. Potential witnesses, experts, specialized advisers, mediators, and arbitrators must receive the order and sign the required nondisclosure agreement before receiving the material.

Recipients may use confidential discovery material only to prosecute or defend this action and any appeals, not for another purpose or litigation. The order does not waive objections to discovery, privileges, or protections, and it does not decide whether any document, testimony, or other evidence is admissible at trial.

Court filings, challenges, and sealing

The order requires a public, redacted version when confidential discovery material is filed with the court or disclosed in a filing. An unredacted version must be filed under seal, with the required application and supporting declaration explaining on a particularized basis why sealing is justified. The order warns that the court may unseal material if it cannot make specific findings showing that sealing is essential and narrowly tailored.

A party may object to a confidentiality designation before trial by giving written notice stating the grounds with particularity. If the parties cannot promptly resolve the dispute, counsel must present it to the court under the court’s individual practices. A party seeking additional disclosure limits, such as an attorneys’-eyes-only restriction, must follow a similar process.

Other obligations

A party may produce confidential material in response to a lawful subpoena or other compulsory process, or when required by law or a government agency, but generally must give the producing party written notice as soon as reasonably possible and, if time permits, at least 10 days before disclosure. Recipients must take precautions against unauthorized or accidental disclosure and maintain a written information-security program with reasonable administrative, technical, and physical safeguards. A recipient discovering a security breach must notify the producing party, investigate and take reasonable remedial steps, and provide enough information to show the breach’s size and scope.

Within 60 days after final disposition of the action, including appeals, recipients generally must return or destroy confidential discovery material and certify that they retained no copies or other reproductions. Counsel specifically retained for the action may keep archival copies of specified case materials, but those copies remain subject to the order.

The order also establishes a process for inadvertently produced privileged or otherwise protected documents. After notice, the receiving party must stop reviewing the document beyond what is necessary to identify the protection and must return, sequester, or destroy the document and related materials within five days. The parties may submit disputed protected documents to the court under seal. The order survives the end of the litigation, and the court retains jurisdiction to enforce its obligations and impose contempt sanctions.