Adams v. Deva Concepts, LLC

Background

The plaintiffs and Deva Concepts, LLC, through counsel, 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 parties stipulated to the proposed terms, and the court found good cause for an appropriately limited order governing the pretrial phase of the case.

Protective designations

The order permits a producing party or other designating person to mark only material that it reasonably and in good faith believes contains specified confidential information. Covered categories include previously undisclosed financial information, information about ownership or control of a nonpublic company, business and marketing plans, product-development information, and personal or intimate information.

Material may receive the higher designation “Highly Confidential – Attorneys’ Eyes Only” when it also contains trade secrets, proprietary information, or competitively sensitive business information whose disclosure is highly likely to cause significant harm to the designating party. The order describes procedures for marking documents, redacting copies for public use, designating deposition testimony and exhibits, and correcting an earlier failure to make a designation.

Limits on disclosure and use

Confidential material may be disclosed only to listed recipients, including the parties, certain insurers and counsel, litigation counsel and their staff, vendors assisting with the case, mediators or arbitrators, specified document recipients, certain witnesses, experts and specialized advisers, deposition stenographers, and the court. Some recipients must first receive the order and sign a nondisclosure agreement.

Attorneys’-eyes-only material is subject to narrower disclosure limits and generally may be shared with litigation counsel and staff, vendors, mediators or arbitrators, specified document recipients, experts or specialized advisers, stenographers, and the court. Recipients may use protected material only to prosecute or defend this action and related appeals, not for another proceeding. The order also requires precautions against unauthorized or accidental disclosure.

Challenges, court filings, and return of materials

A party may object to a confidentiality designation or request additional disclosure limits before trial. If the parties cannot resolve the dispute, they must present it to the court under the court’s individual rules, while the material remains subject to its existing designation pending a ruling.

When confidential material is filed with the court, the parties must publicly file a redacted version and seek permission to file an unredacted version under seal. The order warns that designated material introduced at trial is unlikely to remain sealed unless the court makes the required specific findings. The court did not determine that any particular discovery material was confidential and retained discretion to decide whether to give material confidential treatment.

Within 60 days after final disposition of the action, including appeals, recipients generally must return or destroy confidential material and certify that they kept no copies or summaries. Counsel specifically retained for the action may keep archival copies of specified litigation materials, but those copies remain subject to the order. The order survives the end of the litigation, and the court retains jurisdiction to enforce it and impose contempt sanctions.

Ruling

The court issued the stipulated confidentiality agreement and protective order and ordered the covered parties and other persons with actual notice to follow its terms. The order addressed discovery confidentiality only; the opinion does not decide the underlying claims or defenses.