Lickteig v. Cerberus Capital Management, L.P.

Background

The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c). They sought protections for nonpublic and competitively sensitive information that might be disclosed during discovery. The court found good cause for an appropriately limited order governing the pretrial phase of the action.

Information That May Be Marked Confidential

A producing party may designate only the portions of discovery material that it reasonably and in good faith believes contain:

- Previously undisclosed financial information, including profitability reports or estimates, fees, royalty rates, minimum guarantee payments, sales reports, and margins; - Previously undisclosed information about ownership or control of a nonpublic company; - Previously undisclosed business plans, product-development information, or marketing plans; - Personal or intimate information about an individual; or - Another category that the court later gives confidential status.

The order requires confidential portions of most discovery materials to be clearly marked and requires the producing party to provide a version redacted for future public use. Deposition testimony 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 correct an inadvertent failure to designate material, subject to providing replacement copies within two business days.

Permitted Disclosure and Use

Confidential discovery material may be disclosed to the parties and their insurers, counsel and related personnel, outside vendors working on the case, mediators or arbitrators, certain people identified in a document, potential witnesses, experts and specialized advisers, deposition transcription staff, and the court and appellate courts. Witnesses, experts, mediators, arbitrators, and other specified recipients must first receive the order and sign a non-disclosure agreement.

Recipients may use confidential discovery material only to prosecute or defend this action and related appeals. They may not use it for another purpose or in another litigation proceeding. Anyone with access must take precautions against unauthorized or accidental disclosure.

Court Filings and Challenges

A party filing confidential discovery material or papers that reveal it must publicly file a redacted version and file an unredacted version under seal in accordance with the court's rules. A party seeking to file material under seal must submit an application and supporting declaration explaining why sealing is justified. The order states that the court has not made a final finding that any designated material is confidential and may decide whether confidential treatment is appropriate, particularly if the material is introduced at trial.

A party may object to a confidentiality designation before trial. If the parties cannot resolve the dispute, they must bring it to the court under the applicable individual practice rule. A party seeking additional restrictions, such as an attorneys'-eyes-only designation, may use the same process.

Duration and Enforcement

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

Disposition

The court ordered the parties and other people covered by the order to comply with the stipulated confidentiality agreement and protective order. It did not rule on the admissibility of evidence, waive discovery objections or privileges, determine that any particular material was confidential for all purposes, or decide the underlying claims.