Rivas v. Frank Brusco Maintenance, LLC

Background

The parties, through counsel, jointly 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 order states that the court found good cause for issuing a tailored confidentiality order for the pretrial phase of the case.

Order

The court entered the parties’ stipulated confidentiality agreement and protective order. It covers discovery material—information produced or disclosed during discovery—that a producing party designates as confidential. A producing party may make that designation only for material it reasonably and in good faith believes includes categories such as previously undisclosed financial information, information about ownership or control of a nonpublic company, business or marketing plans, or personal or intimate information.

The order establishes procedures for marking confidential material and for designating deposition testimony and exhibits. A producing party may later correct an earlier failure to designate material by providing written notice and replacement versions. The order states that confidentiality designations do not waive objections to discovery, privilege, or other protections, and do not decide whether evidence is admissible at trial.

Who may receive the information

Confidential discovery material may be disclosed only to people listed in the order, including the parties, certain insurers and their counsel, litigation counsel and their staff, outside vendors working on the case, mediators or arbitrators, document authors and recipients, certain potential witnesses, experts and other specialized advisers, deposition transcription providers, and the court. Witnesses, experts, mediators, and arbitrators must first receive the order and sign a nondisclosure agreement. Counsel must retain those signed agreements and produce them at the times specified in the order.

Court filings and challenges

The order does not make a finding that designated material is confidential. The court retains discretion to decide whether material should receive confidential treatment and warns that it is unlikely to seal material introduced into evidence at trial solely because it was previously designated confidential. A party filing confidential material must publicly file a redacted version and separately seek permission to file the unredacted version under seal, with a particularized explanation supporting sealing.

A party may object to a confidentiality designation before trial by written notice stating the grounds of the objection. The parties must bring unresolved disputes to the court under the court’s individual practices. The same process applies to requests for additional disclosure limits, such as an attorneys’-eyes-only restriction.

Use, return, and enforcement

Recipients may use confidential discovery material only to prosecute or defend this action and related appeals, not for another purpose or proceeding. The order allows disclosure in response to a lawful subpoena or other compulsory process, subject to notice to the producing party when reasonably possible and, if permitted, at least 10 days before disclosure.

Recipients must take precautions against unauthorized or accidental disclosure. Within 60 days after final disposition of the action, including appeals, recipients generally must return or destroy the confidential material and certify that they have not kept copies or other reproductions. Litigation attorneys may retain specified archival materials, but those materials 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.