3A Composites USA Inc. v. Livingston International Inc.

Background

The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c). That rule allows a court, for good cause, to protect parties or persons from harm resulting from discovery. The parties sought protection for nonpublic and competitively sensitive information that might be disclosed during discovery. The court found good cause for an appropriately tailored order governing the pretrial phase of the case.

Confidential information

The order permits a producing party—the party providing discovery—to designate as confidential only material that it reasonably and in good faith believes includes specified types of information. These include nonpublic financial information; previously undisclosed information about ownership or control of a nonpublic company; business plans, marketing and sales information, technical information, trade secrets, proprietary information, customer information, supplier relationships, and related materials; personal or intimate information about an individual; and other categories later given confidential status by the parties or the court.

The order provides procedures for marking documents and portions of deposition transcripts as confidential. A producing party may later designate material that was initially produced without a confidentiality designation, subject to written notice and replacement copies. A confidentiality designation does not waive objections to discovery, privilege, or protection, and does not decide whether material will be admissible at trial.

Who may receive the information

Confidential discovery material may be disclosed only to specified recipients, including the parties and their insurers; counsel and assigned support staff; outside vendors working on the case; mediators or arbitrators; certain people identified on a document; potential witnesses; experts and other specialized advisers; deposition stenographers; and the court and its personnel.

Some recipients, including witnesses, experts, mediators, and arbitrators, must first receive the order and sign a nondisclosure agreement. Counsel must retain those agreements and provide them to opposing counsel ten days before disclosure so that an objection may be raised. Recipients must take reasonable precautions against unauthorized or accidental disclosure and may use the material only to prosecute or defend this action and related appeals.

Court filings and end of the case

The order does not automatically authorize filing confidential material under seal. A party seeking to file such material under seal must follow the court's applicable rules and make the required showing that sealing is essential to protect a higher value and is narrowly tailored. The order warns that the court is unlikely to seal material introduced into evidence at trial merely because it was previously designated confidential.

Parties may object to confidentiality designations or request additional limits on disclosure, such as attorneys'-eyes-only treatment in extraordinary circumstances. If the parties cannot resolve the dispute, they must present it to the court under the applicable individual practices. Within 60 days after final disposition of the action, including appeals, recipients generally must return or destroy confidential material and certify that they have not retained copies or other reproductions. Counsel specifically retained for the case may keep certain archival materials, which remain subject to the order.

The order also addresses inadvertent production of privileged material, stating that such production does not waive the privilege or protection and requiring return and deletion of the material upon written request, subject to a party's right to ask the court to decide whether the material is protected. The order survives termination of the litigation, and the court retains jurisdiction to enforce its obligations and impose contempt sanctions. Judge Vernon S. Broderick entered the stipulated protective order.