Nike, Inc. v. B&H Customs Services, Inc.

Background

The parties submitted a confidentiality stipulation and proposed protective order concerning documents and information exchanged during the pretrial phase of the case. The order applies to Nike, Inc.; B&H Customs Services, Inc.; Hana Freight LLC doing business as Hana International Logistics; Shine Shipping Ltd.; Shine doing business as Shine International Transportation (Shenzhen) Limited; and the various John Does, Jane Does, and XYZ Companies identified in the caption.

Confidentiality Procedures

The order allows counsel to designate information as confidential when counsel determines in good faith that protection is needed for proprietary information, trade secrets, or other sensitive nonpublic information. Confidential information may be used only in connection with this litigation. Permitted recipients include the requesting party and counsel, necessary litigation staff, consultants or experts assisting with the case, and the Court or people who access the information through their Court-related positions.

Before disclosure, counsel must inform the recipient that the information is confidential and restricted to this litigation and must require the recipient to sign the agreement attached as Exhibit A. The order establishes a process for challenging confidentiality designations and states that a designation does not establish that the information is relevant or admissible.

The order also addresses personal identifying information, including Social Security numbers, financial account numbers, passwords, and information that could be used for identity theft. The receiving party must keep that information secure, notify the producing party of a data breach, and cooperate in addressing it. Under Federal Rule of Evidence 502, producing privileged or work-product-protected material does not waive the protection in this case or another federal or state proceeding, including when the production is inadvertent.

Court’s Ruling

The Court found good cause for an appropriately limited protective order under Federal Rule of Civil Procedure 26(c) and ordered the confidentiality procedures. The Court did not review the documents covered by the stipulation and therefore made no finding that any particular document is confidential. Any such determination would be made through document-by-document review under the Court’s procedures and the presumption favoring public access to judicial documents.

Judge Jesse M. Furman specifically declined to order any provision that would allow the parties to file documents under seal without a prior court order. The order provides that confidential materials generally must be returned or destroyed after the litigation, subject to counsel’s retention of protected working files, and allows disclosure when required by law or a valid subpoena. The Clerk of Court was directed to terminate ECF No. 61.