Soprema, Inc. v. Imperbel, N.V.

Background

Soprema, Inc. and Imperbel, N.V., through counsel, stipulated to a confidentiality agreement and protective order under Federal Rule of Civil Procedure 26(c). They asked the court to protect 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.

Scope of Confidential Information

The order defines “Discovery Material” as information of any kind produced or disclosed during discovery. A producing party may designate material as confidential only when it reasonably and in good faith believes the material includes:

- Previously undisclosed financial information, such as profitability reports or estimates, fees, royalty rates, minimum guarantee payments, sales reports, or margins; - Previously undisclosed information about ownership or control of a nonpublic company; - Previously undisclosed business plans, product-development information, or marketing plans; - Information of a personal or intimate nature about an individual; or - Another category that the court later gives confidential status.

The order requires confidential portions of discovery material to be clearly marked. It provides separate procedures for designating deposition testimony and exhibits, including a 30-day period after a deposition during which the entire transcript must be treated as confidential. A producing party may also correct an earlier failure to designate material before trial by notifying prior recipients in writing.

Disclosure and Use Restrictions

People subject to the order may disclose confidential discovery material only to specified recipients, including the parties and their insurers, counsel and litigation-support personnel, outside vendors, mediators or arbitrators, certain people identified in a document, potential witnesses, experts and specialized advisers, deposition transcription services, and the court and appellate court personnel. Mediators, witnesses, experts, and specialized advisers must first receive the order and sign the required nondisclosure agreement. Counsel must retain those agreements and produce them to opposing counsel either before the person testifies or at the end of the case, whichever comes first.

Recipients may use confidential discovery material only to prosecute or defend this action and any related appeals. They may not use it for business, commercial, competitive, or other litigation purposes. The order does not restrict a party’s rights concerning its own documents or information.

Court Filings and Challenges

A party filing confidential material under seal must also file a letter brief and supporting declaration explaining on a particularized basis why continued sealing is justified. The court retains discretion over whether to keep confidential any discovery material submitted in connection with a motion, application, or other proceeding that may result in a court order or decision. The order warns that the court is unlikely to seal material introduced as evidence at trial.

When confidential material is filed, the parties must publicly file a redacted version and submit the unredacted version under seal, along with unredacted courtesy copies for the court and opposing counsel. 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 stating the specific grounds. Unresolved disputes must be presented to the court under its individual practices.

Disposition

The court ordered the parties and all other persons covered by the order to follow its terms, subject to contempt sanctions. Within 60 days after final disposition of the action, including appeals, recipients generally must return or destroy confidential discovery material and certify that they have retained no copies or summaries. Counsel specifically retained for the action may keep archival copies of specified case 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. Judge Paul G. Gardephe signed the order on February 2, 2022.