Precision Medicine Group, LLC v. Blue Matter, LLC

Background

The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c) for nonpublic and confidential information expected to be exchanged during discovery. The court found good cause for an appropriately tailored order governing the pretrial phase of the action. The order states that it does not provide blanket protection for all discovery and does not itself establish that confidential material may be filed under seal.

Confidentiality Levels

The order permits a producing person to designate material as “Confidential” when public disclosure is restricted by law or would harm business, commercial, financial, or personal interests, including previously undisclosed financial information, ownership or control information, business plans, product-development information, marketing plans, and personal or intimate information. Material may be designated “Highly Confidential – Attorneys’ Eyes Only” when disclosure could cause the same types of harm and the material includes previously undisclosed financial information, technical information, or trade secrets.

The producing person or counsel must mark protected material as required by the order. Deposition testimony may be designated during the deposition or within 14 calendar days afterward; during that 14-day period, the entire transcript is treated as highly confidential. Material previously produced without a designation may be redesignated before trial by written notice to prior recipients.

Who May Receive the Material

Confidential material may be disclosed to specified participants, including the parties and their insurers, counsel and litigation-support personnel, outside vendors, mediators or arbitrators, certain document-related individuals, potential witnesses, experts, stenographers, and the court. Many recipients must first receive the order, sign a nondisclosure agreement, and have their signed agreement and curriculum vitae provided to opposing counsel five business days before disclosure, subject to the order’s objection procedure.

Highly confidential material generally may be disclosed to counsel, litigation-support personnel, mediators or arbitrators, certain people connected with documents, experts, stenographers, the court, and limited designated representatives. The order permits one designated person affiliated with the plaintiffs collectively, one affiliated with Blue Matter, and one individual defendant to view highly confidential material solely to assist with the litigation, provided the person is identified in advance and signs the required nondisclosure agreement.

Court Filings and Challenges

A party seeking to file material under seal must simultaneously submit a letter brief and supporting declaration explaining on a particularized basis why continued sealing is justified. The order states that the court retains discretion over whether to keep confidential material confidential when it is submitted in connection with a motion or other proceeding and warns that material introduced at trial is unlikely to remain sealed. Confidential court submissions must include a public redacted filing and an unredacted copy filed under seal.

A party may object to a confidentiality designation before trial by written notice stating the grounds for the objection. If the parties cannot promptly resolve the dispute, counsel must present it to the court under the court’s individual practices.

Other Protections and Disposition

The order incorporates Federal Rule of Civil Procedure 26(b)(5)(B) for inadvertently disclosed privileged or work-product-protected material and states that an inadvertent disclosure does not waive the producing party’s privilege or immunity claim. A receiving party may challenge the claim within 14 calendar days after notice.

The order also addresses discovery material subject to a third party’s confidentiality obligations, lawful subpoenas and other compulsory process, precautions against unauthorized disclosure, and personally identifying information. Protected material may be used only to prosecute or defend this action and related appeals, not for business, commercial, or competitive purposes. The order survives the litigation; within 30 days after final disposition, designated material and copies must be destroyed and the producing party must receive written certification. Willful violations may result in contempt, and the court retains jurisdiction to enforce the order and impose contempt sanctions.

Ruling

Judge Paul G. Gardephe ordered the stipulated protective order on October 15, 2020. The order governs discovery confidentiality and related handling of protected information; the opinion does not decide the underlying claims or defenses.