Lickteig v. Cerberus Capital Management, L.P.

Background

The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c). The order applies to discovery materials—information produced or disclosed during discovery—that a producing party reasonably and in good faith designates as confidential. The court found good cause for an appropriately limited confidentiality order covering the pretrial phase of the case.

What the Order Covers

The order permits confidentiality designations for previously undisclosed financial information; information about ownership or control of a nonpublic company; business plans, product-development information, or marketing plans; personal or intimate information about an individual; and other categories that the court later gives confidential status.

A producing party generally must clearly mark the protected material and provide a version with the confidential information redacted. Special procedures apply to deposition testimony and exhibits. A producing party may correct an earlier failure to designate material by giving written notice and providing replacement versions within two business days. During the 30 days after a deposition, the entire transcript must be treated as confidential.

Disclosure and Use Limits

Confidential discovery material may be disclosed only to specified people, including the parties and certain insurers; counsel and their staff; outside vendors working on the case; mediators or arbitrators; people identified as recipients of a document; potential witnesses; experts and other specialized advisers; deposition transcription staff; and the court and its personnel. Witnesses, experts, mediators, and arbitrators must first sign a nondisclosure agreement. Recipients may use the material only to prosecute or defend this case and related appeals, not for another case or purpose.

Court Filings and Disputes

A party filing confidential discovery material or papers that reveal it must publicly file a redacted version and file the unredacted version under seal, along with the required application and supporting declaration. The order states that the court may later unseal materials if the required particularized findings supporting secrecy cannot be made. Parties may challenge confidentiality designations or request additional limits on disclosure, such as an attorneys’-eyes-only restriction, and must bring unresolved disputes to the court under its individual practices.

The order does not waive objections to discovery, privileges, or protections, and it does not decide whether any material will be admissible at trial. It also does not prevent disclosure required by a lawful subpoena or other compulsory process, subject to notice requirements. Covered persons must take precautions against unauthorized or accidental disclosure.

Disposition

The court ordered the parties and other persons subject to the order to follow its confidentiality terms, with violations potentially punishable as contempt. Within 60 days after the final disposition of the case, including appeals, recipients generally must return or destroy confidential discovery material and certify that they have not retained copies. Counsel may keep certain archival case files, but those files remain subject to the order. The order continues after the litigation ends, and the court retains jurisdiction to enforce it and impose contempt sanctions.