Spicer v. National Union Fire Insurance Company of Pittsburgh, P.A

Background

The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c). They anticipated disclosing nonpublic and competitively sensitive information during discovery. The court found good cause for issuing an appropriately tailored confidentiality order for the pretrial phase of the action.

Confidentiality designations

The order allows a producing party to designate only material that it reasonably and in good faith believes includes specified protected information. The listed categories include previously undisclosed financial information; information about ownership or control of a nonpublic company; business, product-development, or marketing plans; trade secrets and proprietary or competitively sensitive information; personal or intimate information; and the plaintiffs’ defense-cost expenditures, including legal invoices. The court may also give confidential status to another category later.

A producing party generally must clearly mark the protected portion of discovery material and provide a redacted copy 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 correct an earlier failure to designate material by notifying the parties and providing replacement versions within two business days.

Permitted disclosures and use

People subject to the order may disclose confidential discovery material only to specified recipients, including the parties and authorized representatives, counsel and their litigation staff, litigation vendors, mediators or arbitrators, certain people identified on a document, potential witnesses, experts or specialized advisers, deposition stenographers, and the court and its personnel. Mediators, certain witnesses, and experts or advisers must first receive the order and sign the required nondisclosure agreement. Counsel must retain those agreements and produce them to opposing counsel before the person testifies or at the end of the case, whichever comes first.

Recipients may use confidential discovery material only to prosecute or defend this action and related appeals, not for another purpose or litigation. The order does not waive objections to discovery, privilege or other protection, or arguments about evidence admissibility. It also does not restrict a party’s rights concerning its own documents or information.

Court filings, challenges, and subpoenas

A party filing confidential discovery material must publicly file a redacted copy and file the unredacted version under seal as required by the court’s individual rules. A party seeking to file material under seal must submit an application and supporting declaration that justify sealing on a particularized basis. The order warns that the court may not seal material introduced at trial and retains discretion over confidential treatment.

A party may object to a confidentiality designation before trial by giving written notice stating the grounds. If the dispute is not resolved promptly, the affected counsel must bring it to the court under the court’s practices. A party seeking additional restrictions, such as an attorneys’-eyes-only designation in extraordinary circumstances, must follow a similar procedure.

The order permits production in response to a lawful subpoena or other compulsory process, or when required by law or a government agency, subject to prompt written notice to the producing party and, when permitted, at least 10 days’ notice. The producing party bears the burden of opposing compliance if it chooses to do so.

Duration and enforcement

Recipients must take precautions against unauthorized or accidental disclosure. Within 60 days after final disposition of the action, including appeals, recipients generally must return or, with the producing party’s permission, destroy confidential discovery material and certify that they retained no copies or other reproductions. The order allows certain parties, authorized representatives, and attorneys to keep archival copies of specified litigation materials, which remain subject to the order.

The order survives termination of the litigation. The court retains jurisdiction over people subject to it to enforce the order and impose contempt sanctions. Judge Gregory H. Woods therefore entered the stipulated protective order; the opinion does not decide the underlying insurance dispute or make a final finding that any particular discovery material is confidential.