Skiadas v. Acer Therapeutics Inc.

Background

Nicholas Skiadas sued Acer Therapeutics Inc., Chris Schelling, and Harry Palmin, individually and on behalf of all others similarly situated. The parties, through counsel, jointly requested a protective order under Federal Rule of Civil Procedure 26(c) for nonpublic and competitively sensitive information that might be exchanged during discovery. The court found good cause for an appropriately tailored order governing the pretrial phase of the case.

Order

The court entered the parties’ stipulated confidentiality agreement and protective order. It defines “Discovery Material” as information produced or disclosed during discovery and permits a producing party to mark material confidential when it reasonably and in good faith believes the material includes specified categories, such as trade secrets, financial data, product developments, sensitive third-party agreements, personal information, or other categories later given confidential status by the court.

The order generally prohibits people subject to it from disclosing designated confidential material except to listed recipients. Those recipients include the parties and certain insurers, counsel and their support staff, outside vendors working on the case, mediators or arbitrators, certain people identified in documents, potential witnesses, experts and specialized advisers, deposition stenographers, and the court. Witnesses, experts, mediators, and arbitrators must sign a required nondisclosure agreement before receiving the material.

The order also establishes procedures for marking discovery material, correcting an earlier failure to mark material as confidential, objecting to a confidentiality designation, and requesting additional limits such as attorneys’ eyes only treatment. Confidential material may be used only to prosecute or defend this case and related appeals. The order preserves objections to discovery, privileges, and questions about evidence admissibility, and states that the court has not determined that any designated material is actually confidential.

For court filings containing confidential discovery material, the parties must publicly file a redacted version and file the unredacted version under seal when permitted by the court’s rules. A party seeking sealing must submit an application and supporting declaration explaining the need for sealing. The order warns that the court may not keep material confidential if it is introduced at trial.

The order requires precautions against unauthorized or accidental disclosure and addresses inadvertently produced privileged or protected material. Within 60 days after final disposition of the action, including appeals, recipients generally must return or destroy confidential material and certify that they have not retained copies or other reproductions, subject to an archival-copy exception for counsel’s specified case files and work product. The order continues after the litigation ends, and the court retains jurisdiction to enforce it or impose contempt sanctions.

Disposition and Effect

The court entered the stipulated confidentiality agreement and protective order. It did not rule on the merits of the claims, determine that any discovery material was confidential, decide whether evidence is admissible, or otherwise resolve the underlying dispute. Judge Gregory H. Woods signed the order on September 3, 2020.