WeWoreWhat, LLC v. CV Collection, LLC

Background

The parties, through counsel, 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 caption identifies two related case numbers and includes WeWoreWhat, LLC and Onia, LLC as plaintiffs in one action, and CV Collection, LLC, doing business as The Great Eros, as plaintiff in the other. The caption also lists Danielle Bernstein, Saks Fifth Avenue, Inc., Carbon 38, Inc., Does 1–10, and BOP LLC as defendants in the second action.

The court found good cause for an appropriately tailored confidentiality order governing the pretrial phase of the litigation.

Terms of the Protective Order

The order covers discovery material designated “Confidential” or “Confidential – Attorneys’ Eyes Only.” Covered material may not be disclosed except as the order permits, and people subject to the order must take precautions against unauthorized or accidental disclosure.

A producing party may designate material as confidential when it reasonably and in good faith believes the material includes previously undisclosed financial information, ownership or control information, business plans or other commercially sensitive information, vendor or customer identities, personal or intimate information, or another category later given confidential status by the court. The order sets procedures for marking documents and deposition testimony, correcting an omitted designation, and replacing previously produced material with properly designated copies.

“Confidential” material may be disclosed to specified categories of people, including the parties, counsel and their support personnel, litigation vendors, mediators or arbitrators, certain witnesses, experts who meet the order’s requirements, deposition stenographers, and the court. Many recipients must first receive the order and sign a nondisclosure agreement.

“Confidential – Attorneys’ Eyes Only” material is subject to narrower disclosure limits. It generally may be shown only to court personnel, counsel and necessary law-firm employees, certain people connected to the documents or testimony, litigation-support companies, court reporters, qualifying experts, or other people approved by the producing party or the court.

The order requires public redacted filings when protected information is submitted to the court. A party seeking to file such material under seal must apply under the court’s individual rules. The order also provides procedures for objecting to confidentiality designations and requesting additional disclosure limits.

Protected material may be used only to prosecute or defend these actions and related appeals, not for another lawsuit or purpose. The order does not waive objections to discovery, privilege, or other protections, and it does not decide whether evidence will be admissible at trial. It also states that the court has not determined that any designated material is actually confidential and retains discretion to decide whether to maintain confidential treatment.

Within 60 days after final disposition, including appeals, recipients generally must return or destroy protected material and certify that they have not kept copies or reproductions. Attorneys specifically retained for the case may keep certain archival case 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.

Ruling

Judge Paul A. Engelmayer ordered the parties and other persons covered by the order to follow its confidentiality and disclosure restrictions. This was a discovery-related protective order; the opinion did not resolve the underlying claims or defenses.