Bierce v. Schepperly

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 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 producing party to designate material as “Confidential” only when it reasonably and in good faith believes the material contains specified protected information. The listed categories include previously undisclosed financial information; previously undisclosed information about ownership or control of a nonpublic company; previously undisclosed business, product-development, or marketing information; personal or intimate information about an individual; and other categories the court later protects.

The producing party or its counsel must clearly mark protected portions of discovery material. Special procedures apply to deposition testimony and exhibits, including a 30-day period after a deposition during which the entire transcript is treated as confidential. A producing party may also correct an earlier failure to designate material by notifying prior recipients in writing.

Limits on disclosure and use

People subject to the order may disclose confidential discovery material only to specified recipients. These include the parties and their insurers; counsel and their support staff; outside vendors assisting counsel; mediators or arbitrators; certain people identified on a document; potential witnesses; experts and other specialized advisers; deposition stenographers; and the court and its personnel. Counsel must provide the order to certain recipients and obtain signed nondisclosure agreements before disclosure.

Recipients may use confidential discovery material only to prosecute or defend this case and related appeals. They may not use it for business, commercial, competitive, or unrelated litigation purposes. The order does not waive objections to discovery, privilege, work-product protection, or objections to admissibility at trial.

Court filings and challenges

A party filing documents under seal must file a letter brief and supporting declaration explaining, on a particularized basis, why continued sealing is justified. Confidential material submitted to the court must generally be accompanied by a public redacted filing and an unredacted sealed filing. The court retains discretion over whether to keep submitted material confidential and states that it is unlikely to seal material introduced as evidence at trial.

A party may object to a confidentiality designation or request additional disclosure limits. If the parties cannot resolve the issue promptly, counsel must bring the dispute to the court under the judge’s individual practices.

Privilege, conclusion, and enforcement

If privileged or work-product-protected information is inadvertently disclosed, the disclosure does not waive the protection under the order. The receiving party must return or destroy the information within five business days after notice, subject to procedures for a privilege log and a motion to compel production. The disclosing party retains the burden of establishing privilege or protection.

Within 60 days after final disposition of the case, including appeals, recipients must return or, with the producing party’s permission, destroy confidential discovery material and certify that they have not retained copies or other reproductions. Attorneys specifically retained for the case may keep archival copies of specified litigation materials, which remain subject to the order. The order survives the end of the litigation, and the court retains jurisdiction to enforce it and impose contempt sanctions. Judge Philip M. Halpern signed and entered the stipulated protective order on April 1, 2021.