Onemma v. SMD Media Services, Inc.

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. The court found good cause for issuing a confidentiality order tailored to the pretrial phase of the case.

Confidential information

The order defines “Discovery Material” as information of any kind produced or disclosed during discovery. A producing party may designate material as “Confidential” only when it reasonably and in good faith believes the material includes certain protected information, including previously undisclosed financial information; information about ownership or control of a nonpublic company; business, product-development, or marketing plans; personal or intimate information; or information otherwise eligible for protection under Rule 26(c)(1)(G). The court may also later grant confidential status to another category.

The order establishes procedures for marking confidential documents and for designating deposition testimony and exhibits. Entire deposition transcripts must be treated as confidential during the 30 days after a deposition, while the producing party may identify specific pages and lines during that period. A producing party may also later designate material that it previously produced without a confidentiality designation by notifying prior recipients in writing.

Permitted disclosures and use

People subject to the order may disclose confidential discovery material only to the categories listed in the order. These include the parties and their insurers; counsel and litigation support personnel; outside vendors and service providers working on the case; mediators or arbitrators; people identified in a document as its author, addressee, or recipient; certain nonparty witnesses; experts and other specialized advisers; deposition transcription staff; and the court and its personnel.

Before disclosure to an insurer, mediator or arbitrator, certain witnesses, or an expert or specialized adviser, the recipient must receive the order and sign a nondisclosure agreement. Counsel must retain the signed agreements and produce them to opposing counsel before the person testifies or when the case ends, whichever comes first. Confidential material may be used only to prosecute or defend this case and related appeals, not for personal, business, commercial, competitive, or other litigation purposes. The order does not restrict a party’s rights concerning its own documents or information.

Sealing, challenges, and other procedures

The order does not automatically require the court to seal confidential material. A party seeking to file documents under seal must submit a motion or letter motion and supporting declaration explaining, on a particularized basis, why sealing is justified under the court’s filing procedures. The order states that the court may unseal documents if it cannot make specific findings showing that closure is essential to protect higher values and narrowly tailored to that purpose. The court retains discretion over confidential treatment of material submitted in connection with motions or other proceedings and states that it is unlikely to seal material introduced at trial.

A party challenging a confidentiality designation must provide written notice explaining the grounds for the objection. The designating party has 14 days to respond, and the parties must then meet and confer within seven days. If they cannot resolve the dispute, the affected counsel must bring it to the court under the court’s individual practices within 30 days of the grounds for the motion. A party seeking additional disclosure limits must also provide written notice explaining the request.

The order permits production of confidential material in response to a lawful subpoena or other compulsory process, or when required by law or a government agency, subject to prompt notice to the producing party when permitted. Recipients must take reasonable precautions against unauthorized or accidental disclosure. Within 60 days after final disposition of the case, including appeals, recipients must return or destroy the confidential material and certify that they kept no copies or summaries, although litigation counsel may retain specified archival materials subject to the order.

Ruling and effect

The court issued the stipulated protective order. It survives termination of the litigation and remains binding on people who received confidential material. The court retains jurisdiction over those people as necessary to enforce the order or impose contempt sanctions. The order expressly states that it does not waive objections to discovery, waive privileges or protections, or decide whether any document, testimony, or other evidence is admissible at trial. Judge Andrew E. Krause signed the order as the United States Magistrate Judge.

Disposition

The court ordered the stipulated confidentiality agreement and proposed protective order, subject to the terms stated in the order.