Mavrix Photo, Inc. v. Source Digital, Inc.

Background

Mavrix Photo, Inc. and Source Digital, Inc., along with the other parties identified in the caption, jointly requested a protective order under Federal Rule of Civil Procedure 26(c). The parties sought protection for nonpublic and competitively sensitive information that might be exchanged during discovery. Through counsel, they agreed to the order's terms, and the court found good cause to issue a tailored confidentiality order for the pretrial phase.

Confidentiality Designations

The order allows a producing party to designate material as "Confidential" when it reasonably and in good faith believes the material includes previously undisclosed financial information; information about ownership or control of a nonpublic company; business, product-development, or marketing plans; personal or intimate information; sensitive or proprietary financial, technical, marketing, commercial, or business information protected under Rule 26; or another category later given confidential status by the court.

The order also permits a "Confidential—Attorney's Eyes Only" designation under specified requirements. Attorney's-eyes-only material generally may be disclosed only to the people listed in the order, including counsel and certain litigation professionals, and to two designated representatives for each party who need the information to assist with the action or settlement discussions. The order identifies Joe Naylor and Gareth Thomas as the plaintiff's designated representatives and L. Londell McMillan as the defendant's designated representative.

Permitted Disclosures and Use

Confidential material may be disclosed to the parties when needed for the action or related internal reporting and approval, their insurers and insurer counsel, counsel and necessary staff, outside vendors, mediators or arbitrators who sign nondisclosure agreements, document authors and recipients, potential witnesses who sign nondisclosure agreements, experts and other specialized advisers who sign nondisclosure agreements, deposition stenographers, the court and its personnel, people later authorized by the court, and people the parties agree in writing may receive it. Counsel must provide the order to specified recipients, obtain their signed nondisclosure agreements, and retain those agreements.

Recipients may use confidential material only to prosecute or defend this action and any appeals, not for another purpose or litigation. The order does not restrict a party's rights concerning its own documents or information.

Challenges, Court Filings, and Privilege

The order does not waive objections to discovery, privilege, or other protections, and it does not decide whether evidence will be admissible at trial. It also states that the court has not determined that any designated material is actually confidential and may later decide whether to provide confidential treatment.

A party may object to a confidentiality designation before trial by giving written notice stating the grounds. The parties must try to resolve the dispute in good faith, and an unresolved dispute may be presented to the court after the specified five-business-day period. Similar procedures apply when a party seeks additional disclosure limits, such as an attorney's-eyes-only designation.

When confidential material is filed with the court, the parties must publicly file a redacted version and file the unredacted version under seal. A party seeking sealing must submit an application and supporting declaration with a particularized justification. The order warns that the court may unseal documents if the required findings are not made and that confidential discovery material introduced at trial is unlikely to remain sealed solely because it was previously designated confidential.

If privileged or otherwise protected material is accidentally produced, the producing party may notify the receiving party and require the material and copies to be returned or destroyed. The receiving party must not use or disclose the material and may present it to the court under seal within the stated five-business-day period to challenge the privilege or protection claim. The order states that the accidental production itself does not waive the claimed protection for that challenge.

Effect and Ruling

The order requires recipients to return or destroy confidential discovery material within 60 days after final disposition of the action, including appeals, subject to a limited archival-copy exception for attorneys specifically retained for the action. It states that the order continues to bind persons who received protected material after the litigation ends and that the court retains jurisdiction to enforce the obligations and impose contempt sanctions. The order also states in a later notice that the court's jurisdiction over its terms and conditions lasts only while the litigation is pending.

Judge Katherine Polk Failla entered the stipulated protective order on August 27, 2020. This was a discovery-related procedural order, not a decision on the parties' underlying claims.