Buffington v. The Progressive Corporation

Background

The parties 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. Judge Philip M. Halpern found good cause for an appropriately limited confidentiality order covering the pretrial phase of the action.

Confidentiality Designations

The order permits a producing party to designate material as confidential when it reasonably and in good faith believes the material includes previously undisclosed financial information, information about ownership or control of a nonpublic company, business or marketing plans, product-development information, personal or intimate information, or another category that the court later protects. The producing party must clearly mark the protected material and, when needed for public filings, provide a redacted version.

Deposition testimony may be designated confidential during the deposition or within 30 days afterward. 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.

Permitted Disclosures and Use

Confidential discovery material may be disclosed only to the categories listed in the order. These include the parties and certain insurers, counsel and their litigation staff, outside vendors working on the case, mediators or arbitrators, people identified on the face of a document as having received it, certain witnesses, experts and consultants, deposition transcribers, and the court. Witnesses, experts, consultants, mediators, and arbitrators generally must first receive the order and sign a nondisclosure agreement.

Recipients may use confidential discovery material only to prosecute or defend this action and related appeals. They may not use it for business, commercial, competitive, or other litigation purposes. The order does not limit a party's rights concerning its own documents or information, and it does not waive objections to discovery, privilege, work-product protection, or evidentiary objections.

Sealing, Challenges, and Privilege

A party seeking to file material under seal must also file a letter brief and supporting declaration explaining specifically why continued sealing is justified. The court retains discretion over whether to keep designated material confidential when it is submitted in connection with a motion or other proceeding, and the order warns that material introduced at trial is unlikely to remain sealed. Confidential court submissions generally require a public redacted filing and an unredacted filing under seal.

A party may object to a confidentiality designation or request additional disclosure limits before trial. If the parties cannot resolve the dispute, they must bring it to the court under the court's individual practices. If privileged or work-product-protected material is inadvertently disclosed, the receiving party must return or destroy it within five business days after notice and provide a certification. The producing party must then provide a privilege log, while retaining the burden of establishing protection; the receiving party may ask the court to order production.

Disposition and Continuing Effect

Within 60 days after final disposition, including appeals, recipients must return or, with the producing party's permission, destroy confidential discovery material and certify that they have retained no copies or summaries. Litigation counsel may keep certain archival case files, but those files remain subject to the order. The order survives termination of the litigation, and the court retains jurisdiction to enforce it and impose contempt sanctions.

Ruling

Judge Philip M. Halpern issued the stipulated confidentiality and protective order. This order governs discovery handling and confidentiality; the opinion does not decide the merits of the parties' underlying dispute.