Krisko v. Marvel Entertainment, LLC

Background

The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c). They sought protection for nonpublic and competitively sensitive information that might be disclosed during discovery. The opinion does not describe the underlying claims.

Terms of the Order

The order requires the parties and other persons subject to it to protect discovery material designated as “Confidential.” A producing party may make that designation for specified categories, including previously undisclosed financial information, ownership or control information concerning a nonpublic company, business and marketing plans, product-development information, and personal or intimate information. The producing party must make designations reasonably and in good faith.

Confidential material generally may be disclosed only to specified people, including the parties, relevant counsel and support personnel, outside service providers, certain mediators or arbitrators, appropriate witnesses, experts, deposition stenographers, and the court. Some recipients must first sign a nondisclosure agreement.

The order also permits a producing party to designate especially sensitive material as “Attorneys’ Eyes Only.” Such material may be disclosed only to a narrower group, subject to the order’s stated conditions. The order limits use of protected material to prosecuting or defending this action and related appeals.

The order establishes procedures for correcting an earlier failure to designate material, objecting to a designation, responding to subpoenas, filing confidential material with the court, and returning or destroying protected material within 60 days after final disposition of the action, including appeals. It states that producing privileged or work-product-protected material, whether inadvertently or otherwise, does not waive that protection. The court retains jurisdiction to enforce the order and impose contempt sanctions.

What the Court Decided

The court found good cause and issued the stipulated confidentiality agreement and protective order. The order does not itself determine that any material is confidential; it states that the court retains discretion to decide whether to give confidential treatment to particular material. It also warns that the court is unlikely to seal or otherwise protect material introduced into evidence at trial without the required findings. The order addresses discovery and confidentiality only and does not resolve the merits of Krisko’s claims. Judge Gregory H. Woods signed the order on October 19, 2020.