Macquarie Energy LLC v. Mozart Wind LLC

Background

The parties submitted a confidentiality stipulation and proposed protective order for information and documents exchanged during the pretrial phase of the action. The court found good cause for an appropriately tailored order under Federal Rule of Civil Procedure 26(c), which permits protective orders governing discovery.

Confidentiality Rules

A party’s counsel may designate documents or information as confidential when counsel determines in good faith that the designation is needed to protect proprietary information, trade secrets, or other sensitive nonpublic information. Designated material is to be marked “CONFIDENTIAL” and used only in connection with this action.

If a party challenges a designation, the parties’ counsel must make a good-faith effort to resolve the dispute. If they cannot resolve it, the challenging party may ask the court to decide the issue. The order does not establish that confidential information is relevant or admissible, and the parties retain their objections to its use or admissibility.

The parties were directed to meet and confer if a production requires an “Attorneys’ or Experts’ Eyes Only” designation. Other confidential material may be disclosed to the requesting party and its counsel, including in-house counsel; employees of counsel who are needed for the litigation; consultants or experts assisting with the case, to the extent counsel considers necessary; and the court, including a mediator or another person who has access through a court position. Before disclosure, counsel must explain the material’s confidential nature and the order’s restrictions and must require the recipient to sign the agreement attached as Exhibit A.

Personally Identifying and Privileged Information

The order covers personally identifying information exchanged in discovery, including Social Security numbers, financial account numbers, passwords, and information that could be used for identity theft. The receiving party must keep such information secure and confidential and share it only with authorized individuals. If the receiving party experiences a data breach, it must immediately notify the producing party and cooperate in addressing and remedying the breach.

Under Federal Rule of Evidence 502, producing privileged or attorney-work-product-protected documents, electronically stored information, or other information in circumstances covered by that rule does not waive the privilege or protection in this case or another federal or state proceeding.

Sealing and End of Litigation

The court stated that marking material “Confidential” does not create a presumption that the material may be filed under seal. The parties must follow the court’s procedures for seeking permission to file documents under seal. The court also stated that it had not reviewed the documents and made no finding that they were confidential; any such finding would occur, if at all, through a document-by-document review under the court’s rules and the presumption favoring public access.

At the end of the litigation, confidential information and copies must be returned to the producing party or certified as destroyed within 30 days after entry of a final judgment that is no longer subject to further appeal. Counsel may retain working files if those files remain protected. The order also allows disclosure when required by law or a valid subpoena, subject to prior notice to the producing party and reasonable cooperation to preserve confidentiality.

Disposition

Judge Jesse M. Furman ordered the parties’ confidentiality stipulation, while declining to authorize the parties to file documents under seal without a prior court order.