Brown v. Reiser

Background

All parties, through counsel, 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. The court found good cause for an appropriately tailored order governing the pretrial phase of the action.

Confidential information

The order defines Discovery Material as information produced or disclosed during discovery. A producing party may designate material as Confidential if it reasonably and in good faith believes the material includes previously undisclosed financial information, information about ownership or control of a nonpublic company, business plans or product-development or marketing information, personal or intimate information about an individual, or another category the court later protects.

The order requires confidential portions of most discovery materials to be clearly marked and requires a redacted copy for future public use. Deposition testimony and exhibits may be designated during the deposition or within 30 days afterward. During that 30-day period, the entire deposition transcript must be treated as confidential. A producing party may also later designate material that was initially produced without a confidentiality designation.

Permitted disclosures and court filings

Confidential material may be disclosed only to categories listed in the order, including the parties and their insurers, counsel and support staff, outside vendors, mediators or arbitrators, certain people identified on a document, potential witnesses, experts and specialized advisers, deposition transcription personnel, and the court. Certain recipients must first receive the order and sign a non-disclosure agreement.

The order does not waive objections to discovery, privilege, or other protections, and it does not decide whether evidence will be admissible at trial. Confidential material may be used only to prosecute or defend this action and related appeals, not for business, commercial, competitive, or unrelated litigation purposes. The order also provides procedures for subpoenas and other compulsory legal demands.

Parties filing confidential material with the court must publicly file a redacted version and file the unredacted version under seal. The order warns that sealing is not automatic: a party seeking to keep documents sealed must file a letter brief and supporting declaration explaining the need for continued sealing. The court retains discretion over confidential treatment of material submitted in connection with motions and is unlikely to seal material introduced into evidence at trial.

Privilege and enforcement

If privileged or attorney-work-product material is accidentally disclosed, the order states that the disclosure does not waive the protection. The receiving party generally must return or destroy the material within five business days after receiving notice and provide a certification. The disclosing party must then provide a privilege log within five business days, while retaining the burden of establishing the privileged or protected nature of the material. A receiving party may ask the court to compel production, but that motion must be filed under seal and may not rely on the inadvertent disclosure itself as a ground for relief.

Within 60 days after final disposition of the action, including appeals, recipients must return or, with the producing party's permission, destroy confidential material and certify that they have kept no copies or summaries. Lawyers specifically retained for the action may keep archival copies of specified case materials, but those copies remain subject to the order. The order continues after the litigation ends, and the court retains jurisdiction to enforce it and impose contempt sanctions.

Ruling

Judge Philip M. Halpern issued the stipulated confidentiality and protective order. This was a discovery-related procedural order; the opinion does not resolve the parties' underlying claims.