Casper Sleep Inc. v. Nectar Brand LLC
- Paul Gardephe
- 1:18-cv-04459
- U.S. District Court · Southern District of New York
- 10
In Casper Sleep Inc. v. Nectar Brand LLC, Judge Gardephe entered a protective order governing confidential discovery and nondisclosure.
The parties—Casper Sleep Inc., Nectar Brand LLC, DreamCloud Holdings LLC, and DreamCloud Brand LLC—and their representatives, agents, experts, consultants, outside service providers, third parties producing discovery, and other persons covered by the order.
What happened
Casper Sleep Inc. v. Nectar Brand LLC, involving counterclaims, concerned the parties’ request for rules protecting nonpublic and competitively sensitive information exchanged during discovery.
The order creates two protection levels—“Confidential” and “Highly Confidential—Attorneys’ Eyes Only”—and limits who may receive that material and how it may be used. It also sets procedures for challenging designations, filing protected material with the court, handling accidentally disclosed privileged material, and returning or destroying protected material after the case ends.
Judge Paul G. Gardephe found good cause and ordered the parties and other covered persons to follow the protective order, which remains effective after the litigation ends and may be enforced through contempt sanctions.
The detailed version
- Casper Sleep Inc. v. Nectar Brand LLC · No. 1:18-cv-04459
- Paul Gardephe
- Oct. 15, 2020
Background
The parties, through their lawyers, jointly requested a protective order under Federal Rule of Civil Procedure 26(c). That rule allows a court, for good cause, to protect people from harm or undue burden associated with discovery. The requested order addressed nonpublic and competitively sensitive information that might be disclosed in this case, which also includes related counterclaims.
Confidentiality levels
The order permits a producing party to designate only material that it reasonably and in good faith believes qualifies for protection. Examples include previously undisclosed financial information, information about ownership or control of a nonpublic company, business plans, product-development information, marketing plans, and personal or intimate information. The order also permits protection for information covered by Rule 26(c) or another category the court later protects.
The higher designation, “Highly Confidential—Attorneys’ Eyes Only,” is limited to extremely sensitive competitive information whose disclosure to another party or nonparty would create a substantial risk of serious harm that less restrictive measures could not avoid.
Access and use
Confidential material may be disclosed only to specified recipients, including the parties and their insurers, outside counsel and assigned support personnel, litigation vendors, mediators or arbitrators, certain people identified in documents, potential witnesses, experts and specialized advisers, deposition stenographers, and the court. Highly Confidential—Attorneys’ Eyes Only material may be disclosed to a narrower group and generally excludes the parties and potential witnesses.
Before receiving protected material, several categories of recipients must receive the order and sign a nondisclosure agreement. Protected material may be used only to prosecute or defend this action and related appeals, not for business, commercial, competitive, or other litigation purposes. Recipients must take precautions against unauthorized or accidental disclosure.
Sealing and challenges
The order does not decide whether evidence is admissible at trial, waive objections to discovery, or waive privilege. A party filing protected material must publicly file a redacted version and file the unredacted version under seal. The filing party must also submit a letter brief and supporting declaration giving a particularized justification for continued sealing. The order states that the court retains discretion over whether to keep designated material confidential when it is submitted in connection with a motion or other proceeding, and that the court is unlikely to seal material introduced at trial.
A party may object to a confidentiality designation or request additional limits on disclosure before trial. If the parties cannot promptly resolve the dispute, the affected counsel must present it to the court under the judge’s individual practices.
Privileged material and end of the case
If a party gives notice that it inadvertently produced material subject to privilege or another protection, the receiving parties must follow Federal Rule of Civil Procedure 26(b)(5)(B). The order also addresses agreements concerning attorney-client privilege and work-product protection under Federal Rule of Evidence 502.
Within 60 days after final disposition of the action, including appeals, recipients must return or—if the producing party permits—destroy protected material and certify that they retained no copies or other reproductions. Lawyers specifically retained for the action may keep archival copies of specified case-related materials, but those copies remain subject to the order. The order survives termination of the litigation, and the court retains jurisdiction to enforce it or impose contempt sanctions.
Ruling
The order states that all parties stipulated and agreed to its terms. Judge Paul G. Gardephe found good cause for an appropriately tailored confidentiality order and ordered persons covered by it to comply. The court entered the accompanying nondisclosure agreement form for people who receive protected discovery material.
Read the full 10-page opinion on CourtListener, the free public archive maintained by the Free Law Project.