Clair v. Peter Thomas Roth, LLC

Background

The parties submitted a stipulated protective order in this pending federal lawsuit. The order states that discovery may involve confidential, proprietary, or private information requiring protection from public disclosure and use outside the litigation. It also states that the order does not provide automatic protection for every disclosure or permit a party to file protected information under seal without obtaining a separate court order.

Confidentiality Designations

The order defines protected material as discovery material designated either “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL/ATTORNEYS’ EYES ONLY.” A producing party must limit designations to specific material that qualifies for protection; mass or improper designations may lead to sanctions. The order sets requirements for labeling documents, tangible items, electronic material, deposition testimony, and material produced by nonparties. An inadvertent failure to designate material does not by itself waive protection if the designation is corrected promptly.

A party may challenge a confidentiality designation by written notice. The parties must first confer directly and in good faith. If the dispute is not resolved, it may be submitted to the court by letter under Judge Castel’s individual practices. The designating party bears the burden of persuasion in that proceeding, and the material remains protected under its designation until the court rules or the designation is expressly withdrawn.

Use and Disclosure

Protected material may be used only to prosecute, defend, or attempt to settle this lawsuit, unless a court orders otherwise or the designating party gives written permission. “CONFIDENTIAL” material may be disclosed to specified people, including outside counsel, certain party personnel, experts who sign an agreement to be bound, the court, court reporters, certain consultants, qualifying deponents, and agreed mediators or settlement officers. “HIGHLY CONFIDENTIAL/ATTORNEYS’ EYES ONLY” material is subject to narrower access, generally limited to outside counsel, qualifying experts or consultants, certain authors or recipients, the court and court reporters, specified consultants and vendors, mediators, and other people agreed to in writing.

The order also requires steps to address protected material subpoenaed or requested in another case, protected material belonging to a nonparty, and unauthorized disclosures. When a party claims that inadvertently produced material is privileged or otherwise protected, the order incorporates the procedures in Federal Rule of Civil Procedure 26(b)(5)(B) and provides that the production is not a waiver under the order’s terms. The order states that it is an order under Federal Rule of Evidence 502(e).

Sealing and Final Disposition

No document may be filed under seal based solely on the protective order. A party seeking to seal material must submit a separate application addressing the applicable sealing standards and controlling authority. The order also requires receiving parties, within 60 days after final disposition unless otherwise ordered or agreed, to return or destroy protected material and provide a written certification, subject to counsel’s ability to retain specified archival litigation materials. The confidentiality obligations continue after final disposition, and the court retains jurisdiction to enforce the order for six months after final disposition.

Ruling

Pursuant to the parties’ stipulation, Judge P. Kevin Castel ordered the stipulated protective order entered on November 30, 2020. The order governs discovery confidentiality and does not resolve the lawsuit’s underlying claims or defenses.