Capital Markets Placement Inc. v. Neuvoo 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 case.

Terms of the Order

The order covers discovery materials designated as either “Confidential” or “Highly Confidential—Attorneys’ Eyes Only.” Information may be designated confidential if the producing person reasonably and in good faith believes it includes previously undisclosed financial information, nonpublic ownership or control information, competitively sensitive business information, personal or intimate information, or another category the court later approves.

The more restrictive “Highly Confidential—Attorneys’ Eyes Only” designation is available when disclosure to another party or nonparty would create a substantial risk of serious harm that less restrictive protections could not avoid. The order contains procedures for marking documents and deposition testimony, making later designations, and designating materials produced by nonparties.

Who May Receive Protected Information

Confidential information may be disclosed to specified recipients, including the parties, their insurers and insurance counsel, outside counsel and their litigation staff, vendors working on the case, mediators or arbitrators, certain authors or recipients of documents, potential witnesses, experts, and the court. Many recipients must first receive the order and sign a nondisclosure agreement.

Highly Confidential—Attorneys’ Eyes Only information may be disclosed to a narrower group, including litigation counsel and in-house counsel, certain litigation-support personnel, experts, consultants, vendors, witnesses, people who previously had access to the information, other people approved by the parties or court, and the court. Witnesses generally may be shown only the information counsel believes in good faith is necessary for testimony, and may not receive copies outside an actual proceeding.

Challenges, Court Filings, and Use

The order does not waive objections to discovery, waive privilege or other protections, or decide whether evidence is admissible at trial. It also does not make a final finding that designated material is actually confidential. The court retains discretion over whether to give confidential treatment to any material and states that it may be unlikely to seal material introduced at trial.

A party challenging a confidentiality designation may give written notice before trial. If the parties cannot promptly resolve the dispute, they must bring it to the court under the court’s individual practices. Protected material filed with the court generally requires a public redacted filing, an unredacted filing under seal, and a particularized application and supporting declaration justifying sealing.

Recipients may use protected material only to prosecute or defend this case and related appeals. The order addresses disclosures required by subpoenas or other legal process, requires precautions against unauthorized disclosure, and generally requires return or destruction of protected material within 60 days after final disposition, including appeals. The order survives termination of the litigation, and the court retains jurisdiction to enforce it and impose contempt sanctions. Judge Woods ordered the parties and other persons covered by the order to comply with these terms.