Bassaw v. United Industries Corporation

Background

Plaintiffs Shivan Bassaw and Sylvia Fields brought this action individually and on behalf of others similarly situated against United Industries Corporation and Spectrum Brands, Inc. The parties agreed to a stipulated protective order under Federal Rule of Civil Procedure 26(c), which allows courts to protect information exchanged during discovery. The court found good cause to enter an appropriately limited order.

Confidentiality designations

The order allows a producing party or third party to designate only information that the party and its attorney reasonably and in good faith believe falls within specified categories. These include previously undisclosed financial information; information about ownership or control of a nonpublic company; commercially sensitive business, customer, contractual, research, or technical information; trade secrets and proprietary business information; personal or intimate information; and other categories later given confidential status by the court.

Information may receive the higher designation “Highly Confidential – Attorneys’ Eyes Only” only when its sensitivity is such that disclosure without the order’s protections could create an unfair competitive advantage or a risk of serious injury that less restrictive measures could not avoid. Public records and publicly available information may not receive that designation.

Permitted disclosures

Materials designated “Confidential” may be disclosed, when reasonably necessary for this litigation, to specified counsel and their employees, receiving-party personnel, the named plaintiffs, qualified experts and consultants, the court and its personnel, certain litigation professionals and vendors, deposition or trial witnesses, authors or recipients of the documents, custodians or others who already possessed or knew the information, and other people approved in writing by the designating party or by court order. Experts and consultants who are current employees, officers, or directors of a direct competitor of the defendants may not receive the information under the stated provision.

Materials designated “Highly Confidential – Attorneys’ Eyes Only” may be disclosed to outside counsel and their employees, in-house legal counsel, qualified experts and consultants, the court and its personnel, certain litigation professionals and vendors, authors or recipients of the documents, custodians or others who already possessed or knew the information, and people approved in writing by the designating party or by court order. Before disclosure to many listed recipients, counsel must provide a copy of the order and obtain a signed nondisclosure agreement.

Challenges, privilege, and other protections

The order permits a party to challenge a confidentiality designation. The challenging party must give written notice, identify the basis for the challenge, and confer directly with the designating party within fourteen days. If the dispute is not resolved, the challenging party may move for relief after certifying compliance with the required discussion. Until the court rules, the material keeps its designated protection.

If protected information is disclosed without authorization, the receiving party must notify the designating party, try to retrieve the copies, inform recipients of the order, and request signed nondisclosure agreements. If privileged or work-product material is inadvertently produced, the order states that the disclosure does not waive the protection. The attached clawback procedure requires recipients to sequester and return or destroy the material, or submit it conditionally under seal for a court determination. A recipient contesting the privilege claim may move for a determination within twenty calendar days and must keep the information confidential and unused while the dispute is pending.

The order also establishes procedures for responding to subpoenas or other compulsory process from another proceeding, requires protected materials to be returned or destroyed within sixty days after final disposition of the action, and states that violations may result in contempt proceedings or monetary sanctions. The order does not waive objections to discovery, relevance, admissibility, or other grounds for withholding information.

Court’s ruling

The court ordered the stipulated protective order into effect. Judge Jesse Furman specifically stated that the court had not reviewed the documents referenced in the stipulation and therefore made no finding that they were confidential. Any such finding would occur, if necessary, through document-by-document review under the court’s procedures and the presumption favoring public access to judicial documents. The court also stated that the order does not itself authorize filing documents under seal and does not retain jurisdiction over the protective order after the litigation concludes.