Hart v. The Tri-State Consumer, Inc.

Background

The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c). They sought protection for nonpublic and competitively sensitive information that could be disclosed during discovery. The court found good cause for an appropriately tailored order governing the pretrial phase of the action.

Confidentiality designations

The order permits a producing party to designate discovery material as Confidential when it reasonably and in good faith believes the material contains sensitive business, financial, commercial, personal, or employment information, trade secrets, or other information whose disclosure could create harm. Examples include previously undisclosed financial information, ownership information about a nonpublic company, business and marketing plans, and personal or intimate information.

A producing party may designate material as Attorneys’ Eyes Only when it reasonably and in good faith believes the material is highly confidential or highly sensitive. Examples include business strategies, technical and pricing information, sensitive financial data, research and development information, trade secrets, customer or consignor lists, and proprietary software, systems, or processes.

The order explains how parties may mark documents and deposition materials. During the 30 days after a deposition, the entire transcript is treated as Attorneys’ Eyes Only. A producing party may also correct an earlier failure to designate material before trial by notifying prior recipients in writing.

Who may receive the material

Confidential material may be disclosed only to categories listed in the order, including the parties, their insurers and insurers’ counsel, counsel specifically retained for the case and their assigned staff, litigation vendors, mediators or arbitrators who sign nondisclosure agreements, certain people identified on documents, possible witnesses who sign nondisclosure agreements, experts or specialized advisers who sign nondisclosure agreements, deposition stenographers, and the court.

Attorneys’ Eyes Only material may be disclosed to a narrower group, including outside counsel and assigned staff, litigation vendors, mediators or arbitrators who sign nondisclosure agreements, certain people who lawfully received the document outside this lawsuit, noncompetitor experts or specialized advisers who sign nondisclosure agreements, deposition stenographers, the court, and anyone else authorized in writing by the parties or ordered by the court.

Before disclosure to specified witnesses, experts, mediators, arbitrators, and other people, counsel must provide the person with the order and obtain a signed nondisclosure agreement. The agreement requires the person to follow the order and recognizes the court’s authority over disputes arising from it.

Use, court filings, and challenges

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 evidentiary objections, and it does not decide whether any material is admissible at trial.

A party filing protected material must publicly file a redacted version and file the unredacted version under seal. A party seeking to file documents under seal must also submit a letter motion explaining why sealing is appropriate. The court retains discretion over whether to keep protected material confidential when it is submitted in connection with a motion or other proceeding, and the order states that the court is unlikely to seal material introduced into evidence at trial.

A party may object to a confidentiality designation before trial by giving written notice stating the grounds. The producing party must say within seven days whether it withdraws or maintains the designation. If the dispute is not resolved, counsel must bring it to the court under the court’s individual practices.

Privilege and end of the case

If privileged or attorney-work-product material is accidentally disclosed, the disclosure does not itself waive the protection. After receiving notice, the receiving party must return or destroy the material within five business days and provide counsel’s certification. The producing party must then provide a privilege log within five business days. The receiving party may ask the court to order production, but the motion must be filed under seal and may not rely on the accidental disclosure itself as a reason for production. The producing party retains the burden of establishing privilege or protection.

Within 60 days after final disposition of the action, including appeals, recipients must return or destroy protected material and certify that they kept no copies or reproductions, unless the producing party permits destruction instead of return. Counsel specifically retained for the case 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 to enforce it and impose contempt sanctions.

Ruling

Judge Valerie E. Caproni issued the stipulated protective order on March 23, 2022. The order governs the handling of designated discovery materials; it does not resolve the parties’ underlying claims or defenses.