IN RE NIELSEN HOLDINGS PLC SECURITIES LITIGATION

Background

The parties submitted a stipulated protective order under Rule 26(c) of the Federal Rules of Civil Procedure and Rule 502(d) of the Federal Rules of Evidence. The order governs discovery in the securities class action and any cases consolidated or coordinated with it. It covers trade secrets, proprietary business information, nonpublic communications with regulators, confidential business or financial strategies, competitive information, sensitive personal information, and information protected under applicable law.

The order creates two levels of protection: “Confidential” and “Highly Confidential.” Highly Confidential material is information that the producing party reasonably and in good faith believes could cause imminent competitive, commercial, or financial harm if disclosed. A producing party must designate protected material in the required manner, and the order provides procedures for correcting an inadvertent failure or mistake in designation.

Main provisions

Protected discovery may be used only to prosecute, defend, appeal, settle, or enforce insurance rights concerning this action. It generally may not be used for business purposes, other proceedings, investigations, or potential claims not asserted in the second amended complaint.

The order permits disclosure of Confidential material to specified recipients, including counsel, certain party personnel, retained experts and consultants who sign an agreement to be bound, the court and its personnel, mediators, court reporters, certain witnesses, insurers’ relevant employees, and people whose disclosure is agreed to in writing or compelled by law. Highly Confidential material may be disclosed to a narrower group, generally including outside counsel, qualified experts and consultants, the court, certain mediators and vendors, specified witnesses, and others authorized in writing or by law. Disclosures must be limited to what is reasonably necessary for the action.

The parties must meet and confer before asking the court to resolve a challenge to a confidentiality designation. Until the court rules, the challenged material remains protected under the existing designation. The order also requires steps to address unauthorized disclosures, including notice, efforts to retrieve copies, and informing recipients of the order’s terms.

Privilege and filing provisions

If privileged or otherwise protected material is produced inadvertently, the receiving party must follow the applicable federal civil-procedure rules and the order’s clawback procedures. The order provides that an inadvertent disclosure of privileged material does not waive the privilege or protection in this action or another federal or state proceeding.

Protected material filed with the court must be redacted or submitted under seal when required by the court’s electronic-filing privacy policy. Otherwise, a party must seek permission from the court to file it under seal or in redacted form and explain why the presumption of public access is overcome. The order does not authorize filing under seal without a prior court order.

Duration and disposition

The confidentiality obligations continue until the designating party agrees otherwise in writing or the court orders otherwise. After final termination of the action, receiving parties generally must return or destroy protected material within 60 calendar days, subject to exceptions for law, regulation, court order, and specified retained litigation materials. The order survives termination of the action, and the court retains jurisdiction to enforce it.

Ruling

Judge Jesse M. Furman ordered the parties’ stipulated protective order. He expressly stated that the court had not reviewed the documents covered by the stipulation and therefore made no finding that they were confidential. Any such determination would be made later, if necessary, on a document-by-document basis. The order does not decide the securities claims or any party’s ultimate rights, and it does not authorize the parties to file documents under seal without a separate court order.