Nice People at Work, Inc. v. Sternberg

Order and context

The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c). The court found good cause to issue an appropriately tailored confidentiality order for the pretrial phase of the action and ordered the parties and other persons covered by the order to follow its terms.

Information that may be designated confidential

A producing party may designate only material that it reasonably and in good faith believes includes specified types of previously undisclosed information, such as financial information, information about ownership or control of a nonpublic company, business plans, product-development or marketing information, and personal or intimate information. The court may also give confidential status to another category of information later.

The order sets procedures for marking confidential material and producing a redacted copy for future public use. Deposition exhibits and portions of deposition transcripts may be designated during a deposition or within 30 days afterward. During that 30-day period, the entire deposition transcript must be treated as confidential. A party may also correct an earlier failure to designate material by notifying the other parties and providing replacement versions within two business days.

Who may receive and use the material

Confidential discovery material may be disclosed to the parties and their insurers, counsel and litigation support staff, outside vendors working on the matter, certain document recipients, deposition stenographers, the court, and appellate courts. It may also be disclosed to mediators, witnesses, and experts who first receive the order and sign the required nondisclosure agreement. Recipients must take precautions against unauthorized or accidental disclosure and may use the material only to prosecute or defend this action and related appeals, not for another purpose or litigation.

Challenges, court filings, and end of the case

A party may object to a confidentiality designation or request additional limits on disclosure, such as an attorneys’-eyes-only designation, by giving written notice that explains the grounds. Unresolved disputes are to be brought to the court under the court’s individual practices.

When confidential material is filed with the court, the parties must publicly file a redacted version and file the unredacted version under seal with an application and supporting declaration providing a particularized justification. The order warns that the court may unseal materials if the required findings for closure are not established and that confidential treatment at trial is unlikely even if material was previously designated or sealed.

Within 60 days after the final disposition of the action, including appeals, recipients must return or, with the producing party’s permission, destroy confidential material and certify that they have not retained copies or other reproductions. Attorneys specifically retained for the action may keep archival copies of specified case-related materials, but those copies remain subject to the order. The order survives termination of the litigation, and the court retains jurisdiction as needed to enforce it or impose contempt sanctions.

What the court did not decide

The order states that it does not waive objections to discovery, waive privilege or other protection, or determine whether any document, testimony, or other evidence is admissible at trial. It also states that the court made no finding that any designated discovery material is confidential and retains discretion to decide whether to grant confidential treatment. Judge Gregory H. Woods entered the stipulated order on May 27, 2021.