United States of America ex rel. Allen Timothy Yu v. Grifols USA, LLC

Background

The parties jointly requested a 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 or otherwise produced in the case. Judge Gregory H. Woods found good cause for an appropriately tailored confidentiality order governing the pretrial phase.

Confidential Information

The order permits a producing party to designate as confidential only material that it reasonably and in good faith believes falls within specified categories. These include previously undisclosed financial information; information about ownership or control of a nonpublic company; business, product-development, or marketing plans; information about pharmaceutical or biological-product formulas, methods, or processes; trade-secret information; personal or intimate information; and other categories later given confidential status by the court.

The order establishes procedures for marking confidential material, including marking protected portions and producing a public version with redactions. Deposition testimony and exhibits may be designated during the deposition or within 30 days afterward. A producing party may also correct an earlier failure to mark material by giving written notice and providing replacement versions within two business days.

Permitted Disclosures and Use

Confidential discovery material may be disclosed only to specified recipients, including the parties; counsel and their litigation staff; outside vendors working on the matter; mediators or arbitrators; certain people identified on documents; potential witnesses; experts and specialized advisers; deposition stenographers; and the court and its personnel. Witnesses, experts, mediators, and arbitrators generally must first sign a nondisclosure agreement.

Recipients may use confidential material only to prosecute or defend this action and related appeals, not for another purpose or proceeding. People with access must take precautions against unauthorized or accidental disclosure. Within 60 days after final disposition, including appeals, recipients must return or destroy the material and certify that they have not retained copies or other reproductions, subject to the order’s exception allowing litigation counsel to keep certain archival materials.

Court Filings and Challenges

The order requires public redacted filings when confidential material is filed with the court and requires a particularized application and supporting declaration for an unredacted filing under seal. The court stated that it had not itself determined that any designated material was confidential and retained discretion to decide whether confidential treatment was appropriate. It also warned that material introduced at trial was unlikely to remain sealed.

A party may object to a confidentiality designation or request additional disclosure limits, such as attorneys’-eyes-only treatment, by written notice. Unresolved disputes are to be presented to the court under its individual practices. The order does not waive objections to discovery, privileges, or evidentiary objections.

Ruling and Effect

The parties stipulated and agreed to the order, and the court ordered them and the other covered persons to follow its terms, subject to contempt for violations. The order survives termination of the litigation, and the court retains jurisdiction as needed to enforce it or impose contempt sanctions. This opinion concerns discovery confidentiality and does not decide the underlying claims.