Filho v. OTG Management, LLC

Background

The plaintiffs, opt-in plaintiffs, and OTG Management, LLC 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 court found good cause for an appropriately tailored confidentiality order governing the pretrial phase of the action.

Confidential Information

The order permits a producing party to designate discovery material as “Confidential” when disclosure is restricted by law or the producing party reasonably and in good faith believes disclosure would harm business, commercial, financial, or personal interests. Examples include previously undisclosed financial information, internal payroll records, business plans and strategies, information about ownership or control of a nonpublic company, and personal or intimate information such as personnel files and tax documents.

The producing party must generally mark the protected portions and provide a version with confidential information redacted for potential public use. Deposition material may be designated during the deposition or within 30 days after counsel receives the transcript. During that 30-day period, the entire deposition transcript is treated as confidential. A producing party may also later designate material that was initially produced without a confidentiality label.

Attorneys’ Eyes Only Material

A party may designate information as “Attorneys’ Eyes Only” when it contains highly sensitive business or personal information whose disclosure is highly likely to cause significant harm to an individual or to the party’s business or competitive position. This material may generally be disclosed only to the receiving party’s counsel and administrative personnel, qualified outside experts or consultants who sign nondisclosure agreements, the court, certain people identified on the face of a document, or other persons approved by the producing party or the court.

Permitted Disclosures and Use

Confidential material may be disclosed to the parties, insurers and their counsel, counsel retained for the case, litigation vendors, mediators or arbitrators who sign nondisclosure agreements, certain witnesses who may testify about the material and sign such agreements, experts or consultants who sign such agreements, deposition stenographers, and the court. Before disclosure, counsel must provide the person with the order and obtain a signed nondisclosure agreement.

Recipients may use protected material only to prosecute or defend this action and related appeals. They may not use it for business, commercial, competitive, or other litigation purposes. The order does not waive objections to discovery, privilege, or other protections, and it does not decide whether any evidence will be admissible at trial.

Court Filings and Challenges

A party filing another party’s protected material must work jointly with the other party to file a letter motion complying with the court’s procedures for sealed filings. Public filings must include a redacted version, while an unredacted version may be filed under seal. The producing party bears the burden of showing that challenged information should remain designated if the designation is disputed or the court requires further support.

The court retains discretion over whether to keep protected material confidential when it is submitted in connection with a motion or other proceeding. The order warns that the court is unlikely to seal or otherwise protect material introduced as evidence at trial without the required findings. Parties may object to confidentiality designations before trial and must bring unresolved disputes to the court under its procedures.

Return, Destruction, and Enforcement

Within 60 days after final disposition of the action, including all appeals, recipients must return protected material to the producing party or destroy it with the producing party’s written consent. Recipients must certify that they retained no copies or other reproductions, subject to an exception allowing counsel specifically retained for the action to keep archival copies of specified case-related materials. The order continues after the litigation ends, and the court retains jurisdiction as needed to enforce the order or impose contempt sanctions.

Ruling

Judge Sarah Netburn entered the stipulated confidentiality order. This was a discovery-related procedural order; it did not resolve the merits of the plaintiffs’ claims against OTG Management, LLC.