Tescher v. Experian Information Solutions, Inc.

Background

The parties, through counsel, jointly requested a protective order under Federal Rule of Civil Procedure 26(c). The request concerned nonpublic and competitively sensitive information that could be disclosed during discovery. The court found good cause for an appropriately limited order governing the pretrial phase of the case.

Order

The court ordered people subject to the protective order—including the parties, their representatives, agents, experts, consultants, third parties providing discovery, and other people with actual or constructive notice—to protect material designated as “Confidential.” A producing party may designate only material it reasonably and in good faith believes includes previously undisclosed financial information, ownership or control information about a nonpublic company, business plans, product-development or marketing information, personal or intimate information, or another category later given confidential status by the court.

Confidential material generally may be disclosed only to specified categories of people, including the parties, counsel, certain vendors, mediators or arbitrators, document authors and recipients, potential witnesses, experts, court personnel, and deposition stenographers. Certain recipients must first receive the order and sign a nondisclosure agreement. Confidential material may be used only to prosecute or defend this case and related appeals, not for business, commercial, competitive, or other litigation purposes.

Sealing and challenges

The order does not automatically require the court to seal confidential material. A party filing such material under seal must publicly file a redacted version and submit an unredacted version under seal, along with the materials required by the court’s individual practices to justify continued sealing. The court retained discretion over whether to give confidential treatment to material submitted in connection with a motion or other proceeding and warned that material introduced at trial is unlikely to remain sealed.

A party may object to a confidentiality designation or request additional disclosure limits, such as attorney-eyes-only treatment, before trial. If the parties cannot resolve the issue, they must present the dispute to the court under its individual practices.

Privilege and end of the case

If privileged or attorney-work-product material is inadvertently disclosed, the disclosure does not waive the protection. The receiving party generally must return or destroy the material within five business days after notice, while the producing party must provide a privilege log. The receiving party may ask the court to order production, and the producing 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 retained no copies or other reproductions. Counsel specifically retained for the case may keep archival copies of specified litigation materials, but those copies remain subject to the order. The order survives the end of the litigation, and the court retained jurisdiction to enforce it and impose contempt sanctions.

Disposition

Judge Philip M. Halpern entered the stipulated confidentiality agreement and protective order on January 3, 2022. The opinion is a discovery-related order and does not decide the parties’ underlying claims.