Calhoun v. Laidlaw & Company Ltd.

Background

The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c). They sought to protect nonpublic and competitively sensitive information that might be disclosed during discovery. The court found good cause for an appropriately tailored order governing the pretrial phase of the case.

Order

The court entered the parties' stipulated confidentiality agreement and protective order. It requires the parties, their officers, agents, employees, attorneys, people acting with them, and others with actual notice of the order to follow its terms, subject to possible contempt for violations.

A producing party may designate as confidential only material 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, or marketing plans; personal, medical, or intimate information; or another category that the court later gives confidential status. The order provides procedures for marking confidential material and for designating deposition testimony and exhibits.

Confidential discovery material may be disclosed only to specified people, including the parties, their insurers and insurance counsel, counsel and their litigation support staff, outside vendors, certain document recipients, potential witnesses, experts and specialized advisers, deposition stenographers, and the court. Witnesses, experts, mediators, and arbitrators generally must first receive the order and sign a nondisclosure agreement. Recipients may use confidential material only for prosecuting or defending this case and related appeals, not for another proceeding.

The order does not waive objections to discovery, privileges, or protections, and it does not decide whether evidence is admissible at trial. The court made no finding that any particular material is actually confidential and retained discretion over whether to give material confidential treatment. The order warns that material introduced at trial is unlikely to remain sealed.

The parties must publicly file redacted versions of court submissions containing confidential discovery material and seek permission to file unredacted versions under seal. A party objecting to a confidentiality designation may give written notice before trial; unresolved disputes are to be brought to the court. The order also provides a procedure for requesting additional disclosure limits, such as an attorneys'-eyes-only designation.

Unless disclosure is required by a subpoena, other compulsory process, law, or a government agency, recipients must protect confidential material from unauthorized or accidental disclosure. Within 60 days after final disposition of the action, including appeals, recipients must return or, with the producing party's permission, destroy the material and certify that they retained no copies or other reproductions. Counsel specifically retained for the case may keep archival copies of specified case materials, which remain subject to the order.

Disposition

Judge Gregory H. Woods entered the stipulated protective order. The order survives termination of the litigation, and the court retains jurisdiction as needed to enforce its obligations or impose contempt sanctions.