Campbell v. Plant Health Intermediate, Inc.

Nature of the Order

The parties jointly requested a confidentiality and protective order under Federal Rule of Civil Procedure 26(c). That rule permits a court, for good cause, to limit disclosure during discovery. The court found good cause for an appropriately tailored order and entered the parties’ stipulated agreement.

Scope

The order governs discovery in three matters pending before the court: Case Nos. 19-CV-03017, 20-CV-07249, and 21-CV-07920. It binds the parties, their corporate parents, successors and assigns, representatives, agents, experts, consultants, third parties providing discovery, and other persons with actual or constructive notice of the order. Violations may subject a person to contempt.

Confidential Information

A producing party may designate material as confidential only when it reasonably and in good faith believes the material includes specified nonpublic information, including financial information; information about ownership or control of a nonpublic company; business, product-development, or marketing plans; personal or intimate information; documents previously marked confidential; or another category that the court later protects. The order provides procedures for marking documents and redacting copies for public use.

Deposition testimony and exhibits may be designated confidential during the deposition or within 30 days afterward. During that 30-day period, the entire deposition transcript must be treated as confidential. A producing party may also correct an earlier failure to designate material by giving written notice before trial.

Permitted Disclosures and Use

Confidential discovery material may be disclosed to specified recipients, including the parties and their insurers, litigation counsel and their staff, outside vendors, mediators or arbitrators, certain persons identified on a document, potential witnesses, experts and other specialized advisers, deposition stenographers, and the court. Mediators, witnesses, experts, and other specialized advisers generally must first receive the order and sign a nondisclosure agreement.

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

Court Filings and Challenges

A party seeking to file material under seal must publicly file a redacted version and submit the unredacted version under seal. The party must also provide 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 material sealed when it is submitted in connection with a motion or other proceeding and warns that material introduced at trial is unlikely to remain sealed.

A party may object to a confidentiality designation before trial by giving written notice stating the specific grounds. A party may likewise request additional disclosure limits, such as attorneys’-eyes-only treatment, and unresolved disputes may be presented to the court under its individual practices.

Privilege and Return of Materials

If privileged or work-product-protected information is accidentally disclosed, the disclosure does not itself waive the protection. The receiving party generally must return or destroy the information within five business days of notification and provide counsel’s certification. The producing party must then provide a privilege log within five business days, and the receiving party may ask the court to order production. The producing party retains the burden of establishing privilege or protection.

Within 60 days after the final disposition of the action, including appeals, recipients must return or, with the producing party’s permission, destroy confidential discovery material and certify that they kept no copies or other reproductions. Specifically retained litigation attorneys may keep archival copies of certain 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.

Disposition

Judge Philip M. Halpern entered the stipulated confidentiality agreement and protective order. The order is procedural and discovery-related; it does not resolve the merits of the dispute, waive objections or privileges, or decide whether any evidence is admissible at trial.