Benson v. Voss Events, Inc.

Background

The parties, through counsel, jointly requested a protective order under Federal Rule of Civil Procedure 26(c). They sought to protect nonpublic and competitively sensitive information that might be disclosed during discovery. Judge Failla found good cause for an appropriately tailored confidentiality order governing the pretrial phase of the case.

Protective-order terms

The order permits a producing party to designate portions of discovery material as confidential when it reasonably and in good faith believes the material includes previously undisclosed financial information, information about ownership or control of a nonpublic company, business or marketing plans, personal or intimate information, or another category later given confidential status by the court.

People covered by the order generally may not disclose confidential discovery material except to specified recipients, including the parties, counsel and their support staff, litigation vendors, certain mediators or arbitrators, document authors and recipients, potential witnesses, experts, deposition stenographers, and the court. Some recipients must first sign a nondisclosure agreement. The material may be used only to prosecute or defend this action and related appeals.

The order separately requires secure handling of personally identifying information. It requires prompt notice and remedial efforts after an unauthorized disclosure. It also provides that inadvertent production of privileged or attorney-work-product material does not waive the privilege or protection under Federal Rule of Evidence 502.

Parties may object to confidentiality designations or request additional disclosure limits, such as attorneys’-eyes-only treatment, by giving written notice with specific reasons. Unresolved disputes are to be presented to the court under the judge’s individual rules. A party seeking to file confidential discovery material must publicly file a redacted version and separately seek permission to file an unredacted version under seal, supported by a particularized justification.

Disposition and effect

The court entered the stipulated confidentiality agreement and protective order. It stated that the order did not itself determine whether designated material was actually confidential, admissible, privileged, or relevant, and warned that material introduced at trial might not remain sealed. Recipients generally must return or destroy confidential material within 60 days after final disposition, including appeals, subject to limited archival retention by counsel. The order also states that it survives termination of the litigation and that the court retains jurisdiction to enforce its obligations and impose contempt sanctions. The opinion’s concluding language separately states that the court’s jurisdiction over the agreement lasts only during the litigation.