Rosco, Inc. v. Safety Vision, LLC

Background

Rosco, Inc. and Safety Vision, LLC agreed to seek a protective order for discovery related to venue in the litigation. The proposed order stated that discovery could involve trade secrets, technical know-how, research and development information, commercial information, personal information, financial information, and information provided confidentially by nonparties.

The order governed documents, electronically stored information, physical items, exhibits, discovery responses, testimony, summaries, excerpts, and information derived from protected material. A party or nonparty could designate material as either CONFIDENTIAL or HIGHLY CONFIDENTIAL if it made the designation in good faith and limited it to material qualifying for protection under Federal Rule of Civil Procedure 26(c).

Protection levels and permitted disclosure

CONFIDENTIAL material could generally be disclosed to outside counsel, up to two identified in-house representatives whose assistance was needed for the litigation, approved consultants and experts, the court and court personnel, litigation-support providers, certain trial consultants, authors and recipients of the material, and others only with court approval or the producing party’s written consent.

HIGHLY CONFIDENTIAL material had stricter limits. It could generally be disclosed only to outside counsel, approved consultants and experts, the court and court personnel, certain litigation-support providers and trial consultants, authors and recipients, or another person with court approval or the producing party’s written consent. The order described HIGHLY CONFIDENTIAL information as extremely sensitive information whose disclosure could substantially harm a party’s business, finances, competitive position, industry standing, or otherwise create a risk of injury that less restrictive measures could not avoid.

Experts, designations, and challenges

Before receiving protected material, a consultant or expert had to receive the order, agree in writing to follow it, and be identified to the producing party with specified information, including addresses, employer, job title, curriculum vitae, prior association with a party, and litigation work during the preceding five years. The opposing party had five court days to object. If it objected, the material could not be disclosed during the stated objection period, and further disclosure required a court order if the parties could not resolve the dispute.

The order also established procedures for designating documents, inspection materials, depositions, and testimony. A party could challenge a designation in writing. The designating party then had fourteen calendar days to substantiate the designation; failure to respond would result in de-designation under the order. Until the dispute was resolved, the material retained its existing designation.

Accidental disclosures and duration

The order addressed inadvertently produced privileged or protected work-product material. After notice, the receiving party generally had to return or destroy the material and stop using it, while preserving a single copy if it contested the designation and sought court relief within the stated deadlines. Similar procedures applied when protected material was produced without the required confidentiality marking or was disclosed to an unauthorized person.

The restrictions continued during and after the litigation, including appeals. Within sixty calendar days after notice of a final order, judgment, or decree disposing of the action and any appeals, recipients generally had to return or certify destruction of protected material. Outside counsel could retain certain court papers, transcripts, and attorney work product, but could not disclose the protected information they contained except as allowed by the order.

Court’s ruling and limitation on sealing

Judge Jesse Furman entered the stipulated protective arrangement, but the court expressly stated that it had not reviewed the documents and made no finding that any document was confidential. The court also did not approve any provision that purported to let the parties file documents under seal without a prior court order. Any sealing request therefore remained subject to the court’s rules, document-specific review, and the presumption favoring public access to judicial documents.

Result

The parties were bound to follow the protective-order procedures for designated discovery material. The order protected the handling and use of designated information, but it did not itself establish that particular documents were confidential or authorize automatic sealing.