Bates v. Dev A Concepts, LLC

Background

The plaintiffs and Deva Concepts, LLC, doing business as Deva Curl, jointly requested a protective order under Federal Rule of Civil Procedure 26(c). They sought protection for nonpublic and competitively sensitive information that could be disclosed during discovery. The court found good cause for issuing a tailored confidentiality order for the pretrial phase of the case.

Confidentiality designations

The order permits a designating party to label only the portion of discovery material that it reasonably and in good faith believes contains specified protected information. “Confidential” material may include previously undisclosed financial information; information about ownership or control of a nonpublic company; business, product-development, or marketing plans; personal or intimate information; and other categories the court later grants confidential status.

“Highly Confidential—Attorneys’ Eyes Only” material must meet the criteria for confidential material and also consist of trade secrets, proprietary information, or competitively sensitive business information whose disclosure is highly likely to cause significant harm to the designating party.

The order describes procedures for marking documents and electronically stored information, including redacting a version intended for public use. Deposition testimony and exhibits may be designated during the deposition or within 30 days afterward. During that 30-day period, the entire deposition transcript must be treated as protected. A party may also correct an earlier failure to designate material, and a receiving party may request a designation.

Disclosure and use restrictions

Confidential material may be disclosed to specified recipients, including the parties, insurers and their counsel, counsel retained for the case, litigation vendors, mediators or arbitrators, certain people identified on a document, potential witnesses, experts and specialized advisers, deposition stenographers, and the court. Several categories of recipients must first receive the order and sign the nondisclosure agreement attached as Exhibit A.

Attorneys’ Eyes Only material may be disclosed to a narrower group, generally including counsel and their staff, litigation vendors, mediators or arbitrators, certain people identified on a document, experts and specialized advisers, deposition stenographers, and the court. Recipients may use protected material only to prosecute or defend this action and any appeals, not for another purpose or litigation. The order also requires precautions against unauthorized or accidental disclosure and requires return or destruction of inadvertently disclosed material within two business days after a claim of inadvertent disclosure.

Court filings and challenges

The order does not waive objections to discovery, privileges, or protections, and it does not decide whether any material is admissible at trial. It also states that the court made no finding that any designated material is actually confidential and retains discretion over whether to provide confidential treatment.

A party filing protected material with the court must publicly file a redacted version and file the unredacted version under seal in accordance with the court’s individual rules. A party seeking sealing must provide a particularized justification. The order warns that the court is unlikely to seal or otherwise protect material introduced into evidence at trial merely because it was previously designated as confidential.

A party may object to a confidentiality designation before trial by written notice stating the grounds. Unless the parties resolve the dispute or the court rules otherwise, the material remains subject to its designation. Parties may likewise request additional disclosure limits and bring unresolved disputes to the court.

Disposition and continuing effect

Judge Gregory H. Woods entered the stipulated confidentiality agreement and protective order on March 18, 2021. It binds the parties and other persons covered by its terms, remains effective after the litigation ends for people who received protected material, and preserves the court’s jurisdiction to enforce the order and impose contempt sanctions. The order does not decide the merits of the underlying action.