Stephenson v. Exclusive Motor-Sports LLC

Background

The parties, through counsel, stipulated to a confidentiality agreement and protective order under Federal Rule of Civil Procedure 26(c). They sought protection for nonpublic and competitively sensitive information that might be disclosed during discovery. The court found good cause for an appropriately tailored order governing the pretrial phase of the action.

Confidentiality designations and permitted disclosures

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 specified categories, such as previously undisclosed financial information; previously undisclosed information about ownership or control of a nonpublic company; business, product-development, or marketing plans; personal or intimate information; or another category later given confidential status by the court.

The producing party or its counsel must mark protected portions of discovery material and produce a redacted copy for future public use. Deposition exhibits and transcript portions may be designated during the deposition or within 30 days afterward; during that 30-day period, the entire deposition transcript is treated as confidential.

Confidential material may be disclosed only to categories listed in the order, including the parties, their insurers, litigation counsel and staff, outside vendors, investigators, mediators or arbitrators, certain people identified in documents, potential witnesses, experts and other specialized advisers, deposition transcription providers, and the court. Before disclosure to certain recipients, including investigators, mediators, potential witnesses, and experts, counsel must provide the order and obtain a signed nondisclosure agreement.

Court filings and challenges

The order does not waive objections to discovery, privileges, or protections, and it does not decide whether evidence will be admissible at trial. A party filing confidential material must publicly file a redacted version and file the unredacted version under seal. The court retains discretion over whether to keep material confidential when it is submitted in connection with a motion or other proceeding, and the order states 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,” before trial. If the parties cannot promptly resolve the dispute, counsel must bring it to the court under the court’s individual practices.

Privileged information and end of the case

An inadvertent disclosure of material protected by attorney-client privilege or the attorney-work-product protection does not waive that protection under the order. After notice, the receiving party generally must return or destroy the material within five business days, and the producing party must then provide a privilege log. The receiving party may ask the court to compel production, while the producing party retains the burden of establishing the material’s privileged or protected status.

Within 60 days after final disposition of the action, including appeals, recipients must return or destroy confidential discovery material and certify that they have not kept copies or other reproductions. Counsel specifically retained for the action may keep an archival copy of specified case materials, but those copies remain subject to the order. The order survives termination of the litigation, and the court retains jurisdiction to enforce it or impose contempt sanctions.

Disposition

Judge Philip M. Halpern entered the stipulated confidentiality and protective order. This order addressed discovery confidentiality and related procedures; the provided text does not decide the underlying claims or defenses.