Philip Morris Capital Corporation v. National Railroad Passenger Corporation

Background

Plaintiffs Philip Morris Capital Corporation and HNB Investment Corporation and defendant National Railroad Passenger Corporation, identified in the order as Amtrak, anticipated that discovery would involve confidential, proprietary, trade-secret, and commercially sensitive information. They submitted a stipulated protective order governing the treatment, access, use, and disclosure of that information.

Protective-order terms

The order defines discovery materials broadly to include documents, testimony, transcripts, tangible things, and other information produced or disclosed in the litigation, including materials from nonparties. Protected material may be designated either “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL—OUTSIDE ATTORNEYS’ EYES ONLY.” Receiving parties may use protected material only for this litigation, its preparation and trial, or related appellate proceedings.

Material designated “CONFIDENTIAL” may be disclosed to specified recipients, including the parties, outside counsel, qualified experts and consultants, certain people connected to the material, litigation-support providers, court personnel, and others authorized by agreement or court order. Recipients must be informed of the order and agree to be bound by it. Material designated “HIGHLY CONFIDENTIAL—OUTSIDE ATTORNEYS’ EYES ONLY” is subject to narrower access, generally excluding the parties themselves, although disclosure to a client may occur with the producing party’s consent or the court’s permission when outside counsel reasonably believes it is necessary to advise the client.

The order establishes procedures for designating documents, tangible things, deposition testimony, written discovery, and court papers. Deposition transcripts are treated as highly confidential for 21 days after receipt, during which time designations may be made. A party challenging a designation must give written notice and the parties must try to resolve the dispute; if they cannot, the receiving party may ask the court to decide. The designating party retains the burden of proving that the designation is proper.

The order also addresses subpoenas, nonparty materials, inadvertent confidentiality designations, and inadvertently produced material subject to a privilege or other protection. Upon notice of a privilege claim, the receiving party must promptly return, sequester, or destroy the material, must not use or disclose it while the claim is unresolved, and may present it to the court under seal. The order states that it is intended to provide the maximum protection allowed by Federal Rule of Evidence 502(d).

Sealing and court filings

A filing that contains protected material must be submitted under seal only in accordance with the Federal Rules of Civil Procedure, the court’s local rules, and a prior court order, with a public redacted version also filed. The court warned that it is unlikely to seal or otherwise protect material introduced at trial and retains discretion over confidential treatment of material submitted in connection with motions or other proceedings that may lead to a decision.

Ruling

Judge Jesse M. Furman ordered the stipulated protective order. The court expressly stated that it had not reviewed the documents covered by the stipulation and therefore made no finding that any document was confidential. The court also declined to “so order” any provision that purported to authorize the parties to file documents under seal without a prior court order. The order requires, upon written request, return or sworn destruction of protected materials 90 days after the case—including appeals—ends, subject to exceptions for materials admitted into evidence or properly made part of the public record.