Biddick v. Lumondi, Inc.

Background

Scott Biddick sued Lumondi, Inc. The opinion addresses a stipulated confidentiality agreement and protective order for the discovery phase of the action. The parties, through counsel, requested protection for nonpublic and competitively sensitive information that might be disclosed during discovery. The court found good cause for issuing a tailored order governing the pretrial phase.

Confidentiality Designations

The order covers discovery material designated as “Confidential.” A producing party may designate only material that it reasonably and in good faith believes includes previously undisclosed financial information; information about ownership or control of a nonpublic company; business plans, product-development information, technical manufacturing or design information, or marketing plans; personal or intimate information about an individual; or another category that the court later protects.

The producing party or its counsel must clearly mark confidential portions and provide a redacted copy for future public use. Deposition testimony and exhibits may be designated during the deposition or within 30 days after the deposition. During that 30-day period, the entire deposition transcript must be treated as confidential. A producing party may also correct an earlier failure to designate material by notifying prior recipients in writing before trial.

Permitted Disclosures and Use

Confidential material may be disclosed only to the people listed in the order. They include the parties and their insurers, counsel and litigation staff, outside service providers, mediators or arbitrators, certain people identified in a document, potential witnesses, experts and specialized advisers, deposition transcription staff, and the court and its personnel. Witnesses, experts, mediators, arbitrators, and certain other recipients must receive the order and sign a nondisclosure agreement before receiving the material.

Recipients may use confidential material only to prosecute or defend this action and any appeals. They may not use it for business, commercial, competitive, or other litigation purposes. The order does not restrict a party's rights concerning its own documents or information.

Court Filings and Challenges

A party seeking to file material under seal must file a letter brief and supporting declaration explaining, on a particularized basis, why continued sealing is justified. The court retains discretion over whether to give confidential treatment to material submitted in connection with a motion or other proceeding. The order warns that the court is unlikely to seal material introduced into evidence at trial merely because it was previously designated confidential.

A party may object to a confidentiality designation before trial by giving written notice stating the specific grounds. If the parties cannot promptly resolve the dispute, the party seeking to maintain the designation must bring the issue to the court under the judge's individual rules. A party seeking additional limits on disclosure may use the same procedure.

Return, Continuing Effect, and Enforcement

Within 60 days after final disposition of the action, including appeals, recipients must return or, with the producing party's permission, destroy confidential material and certify that they have not kept copies or other reproductions. Litigation counsel may retain an archival copy of specified case materials and work product, but those copies remain subject to the order.

The order remains binding after the litigation ends. The court retains jurisdiction as necessary to enforce the order and impose sanctions for contempt. Judge Vernon S. Broderick signed and ordered the stipulated protective order on January 20, 2021. The opinion does not decide the merits of the underlying dispute between Biddick and Lumondi, Inc.