Mayville v. Future Motion, Inc.

Background

Eric Mayville and Julie Mayville, identified as the plaintiffs, and Future Motion, Inc., identified as the defendant, jointly requested a protective order under Federal Rule of Civil Procedure 26(c). The request concerned nonpublic and competitively sensitive information that the parties might disclose during discovery. The parties agreed through counsel to the proposed terms, and the court found good cause for a confidentiality order governing the pretrial phase.

Confidentiality designations

The order permits a producing party to designate material as “Confidential” only when it reasonably and in good faith believes the material includes specified types of information, such as previously undisclosed financial information, ownership or control information about a nonpublic company, business plans, product-development or marketing information, or personal or intimate information. The order also permits the court to give confidential status to another category of information later.

The producing party or its counsel must clearly mark protected portions of discovery material. Special procedures apply to deposition testimony and exhibits, including designation during the deposition or written designation of specific transcript pages and lines within 30 days after the deposition. A producing party may also correct an earlier failure to designate material by notifying prior recipients in writing before trial.

Limits on disclosure and use

People subject to the order may disclose confidential discovery material only to listed categories of recipients. These include the parties and their insurers, counsel and litigation-support staff, outside vendors working on the case, mediators or arbitrators, certain people identified in documents, potential witnesses, experts or specialized advisers, deposition transcription personnel, and the court and its personnel. Some recipients must first receive the order, sign a nondisclosure agreement, and agree to be bound by its terms.

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 restrict a party’s rights concerning its own documents or information.

The order does not waive objections to discovery, privileges, or protections, and it does not decide whether evidence is admissible at trial. It also permits disclosure when required by a lawful subpoena, other compulsory process, law, or a government agency, subject to notice to the producing party when reasonably possible.

Sealing and challenges

A party filing documents under seal must publicly file a redacted version and submit a letter brief and supporting declaration explaining on a particularized basis why continued sealing is justified. The court retains discretion over whether to keep confidential material confidential when it is submitted in connection with a motion or other proceeding. The order warns that material introduced at trial is unlikely to remain sealed.

A party may object to a confidentiality designation or request additional disclosure limits, such as attorneys’-eyes-only treatment in extraordinary circumstances. If the parties cannot promptly resolve the dispute, they must present it to the court under the court’s individual practices.

Inadvertent disclosure and end of case

If privileged or attorney-work-product material is inadvertently disclosed, the disclosure does not itself waive the privilege or protection. After receiving a claim of inadvertent disclosure, the receiving party must return or destroy the material within five business days and provide counsel’s certification. The producing party must then provide a privilege log, while the receiving party may ask the court to compel production. The producing party retains the burden of establishing that the material is privileged or protected.

Within 60 days after the final disposition of the action, including appeals, recipients generally must return or, with the producing party’s permission, destroy confidential discovery material and certify that they retained no copies or other reproductions. Specifically retained attorneys may keep archival copies of certain case-related materials, but those copies 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.

Ruling

Judge Philip M. Halpern ordered the stipulated protective order and required covered persons to comply with its terms. The order applies to the parties, their representatives, agents, experts, consultants, third parties providing discovery, and others with actual or constructive notice of the order.