Capital Markets Placement Inc. v. Neuvoo Inc.

Background

The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c). A protective order sets limits on the handling and use of information exchanged during discovery. The parties sought protection for nonpublic and competitively sensitive information that might be disclosed in the case. The court found good cause for issuing a tailored order governing the pretrial phase.

Confidentiality designations

The order permits a producing party—the party disclosing discovery material—to designate only portions of material that it reasonably and in good faith believes contain protected information. Listed categories include previously undisclosed financial information, information about ownership or control of a nonpublic company, competitively sensitive business information, and personal or intimate information. The court may also grant confidential status to other categories later.

A producing party may designate especially sensitive material as “Highly Confidential—Attorneys’ Eyes Only” when disclosure to another party or nonparty would create a substantial risk of serious harm that less restrictive measures could not avoid. Discovery materials produced by nonparties are presumptively treated as confidential for 30 days after receipt by each party’s counsel, subject to the order’s designation procedures.

Access and use

Confidential material may be disclosed to specified recipients, including the parties, their insurers and insurance counsel, counsel and litigation-support personnel, outside vendors, mediators or arbitrators, document authors and recipients, potential witnesses, experts, stenographers, and the court. Certain recipients must first receive the order and sign a nondisclosure agreement.

Access to Attorneys’ Eyes Only material is more limited. The order permits disclosure to counsel and in-house counsel, litigation-support providers, mediators, consultants, experts, certain witnesses, people who previously had access to the information, other persons agreed to by the parties or designated by the court, and the court. Witnesses generally may be shown only the information counsel believes in good faith is necessary, and outside-trial disclosures require compliance with the order’s nondisclosure procedures.

Protected material may be used only to prosecute or defend this action and related appeals, not for another purpose or litigation. People with access must take reasonable precautions against unauthorized or accidental disclosure. The order does not waive discovery objections or privileges and does not decide whether any material will be admissible at trial.

Court filings and challenges

A party filing protected material must publicly file a redacted version and submit an unredacted version under seal under the court’s filing rules. A party seeking sealing must provide a particularized justification. The order warns that the court may not seal material introduced at trial and has not itself determined that any designated material is confidential.

A party may object to a confidentiality designation before trial by giving written notice that explains the grounds. If the parties cannot promptly resolve the dispute, counsel must bring it to the court under the court’s individual practices.

Disposition

The court ordered the parties and other persons subject to the order to follow its terms, subject to contempt consequences. Within 60 days after final disposition of the action, including appeals, recipients generally must return or destroy protected material and certify that they retained no copies or summaries. Attorneys specifically retained for the action may keep certain archival litigation files, which remain subject to the order. The order survives termination of the litigation, and the court retains jurisdiction to enforce it and impose contempt sanctions. Judge Gregory H. Woods entered the order as “SO ORDERED” on April 7, 2022.