Willis RE Inc. v. Herriott

Background

The parties submitted a joint confidentiality agreement and order governing information produced by a party or by non-party TigerRisk Partners LLC during the litigation, related proceedings, or any appeals. The order applied to documents, information, and things exchanged in discovery or provided in response to discovery requests or subpoenas. Non-parties producing documents or appearing for depositions could receive the order’s protections and obligations after signing the required acknowledgment.

Confidentiality Designations

The order permitted a producing party to designate material as “Confidential” if it believed in good faith that the material contained nonpublic business information, personal information, privacy-sensitive information, or other proprietary information or trade secrets. A producing party could designate material as “Highly Confidential” if it believed in good faith that the material contained trade secrets or posed a substantial risk of serious financial or other injury that less restrictive measures could not avoid.

A party or TigerRisk could also designate information originating with, created by, or concerning another designating party. Confidential and Highly Confidential material could be used only to prepare for and conduct the litigation.

Disclosure and Use

The order limited disclosure of Confidential Material to specified people, including counsel and their employees, certain party or TigerRisk personnel working on the litigation, experts and consultants, potential or anticipated witnesses and their counsel, the court and its personnel, and court reporters. Highly Confidential Material could be disclosed to those groups and to people who had previously authored, received, seen, or otherwise been familiar with the material, but only to the extent of that prior familiarity.

Before receiving protected material, a witness, expert, or consultant generally had to receive the order and sign the acknowledgment in Exhibit A. If a witness refused to sign, the receiving party had to obtain written agreement from the parties and, if applicable, TigerRisk, or obtain appropriate relief from the court before making the disclosure. The order also stated that parties seeking to use protected material in court filings should seek to file it under seal and, where practicable, separate protected and unprotected material.

Challenges and Other Protections

A receiving party objecting to a confidentiality designation had to give written notice within three business days and explain the objection. If the designating party maintained the designation, the receiving party generally had three business days to ask the court to rule that the material was not entitled to confidential treatment. The material remained protected while the dispute was pending.

The order preserved objections to discovery, requests for additional protection, challenges to confidentiality designations, and objections to using protected material as evidence. An inadvertent failure to designate material did not waive confidentiality if the producing party later gave written notice. An inadvertent production of material protected by attorney-client privilege or the work-product doctrine did not waive those protections, and the receiving party had to return the material and not retain copies upon request.

If protected material was sought in another proceeding, the receiving party had to promptly notify the producing party and generally could not produce it until objections were resolved, unless complying would violate another court’s order. Within 30 days after the litigation ended, receiving parties had to return the protected material and copies or certify that they had destroyed it, subject to the order’s exception for electronic backup or archival storage. The order also required notice of known breaches or misappropriation.

Court’s Action and Limits

The parties agreed to be bound while the order awaited entry, and violations were subject to the same sanctions and penalties as violations of a court-entered order. Judge Jesse Furman ordered the agreement on March 10, 2021.

The court expressly stated that it had not reviewed the documents covered by the agreement and therefore made no finding that any document was confidential. Whether a document qualified for confidential treatment would be decided, if necessary, through document-by-document review under the court’s procedures and the presumption favoring public access to judicial documents. The court ordered that no provision purporting to authorize filing documents under seal without a prior court order would apply.