Everytown for Gun Safety Action Fund, Inc. v. Defcad, Inc.

What the court addressed

The parties, through counsel, jointly requested a protective order under Federal Rule of Civil Procedure 26(c). They sought protection for 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 of the case.

Confidentiality designations

The order permits a producing party to label only the portions of discovery material that it reasonably and in good faith believes contain specified protected information. This includes previously undisclosed financial information; information about ownership or control of a nonpublic company; business, product-development, or marketing plans; and personal or intimate information about an individual. The court may also give confidential status to other categories later.

A producing party may designate especially sensitive material as “Highly Confidential—Attorneys’ Eyes Only.” The order identifies this category as including highly sensitive trade secrets, proprietary business information, commercially sensitive technical or financial information, business policy or strategic planning, and personal or intimate information, including information that could lead to identifying an individual. Discovery produced by a nonparty is automatically treated as highly confidential for seven days after production, giving the parties an opportunity to make a designation.

Who may receive protected information

Confidential material may be disclosed only to people listed in the order, including the parties and their insurers; counsel and assigned support staff; outside vendors working on the case; mediators or arbitrators; certain people identified on a document; potential witnesses; experts and specialized advisers; deposition stenographers; and the court and its support personnel. Witnesses, experts, mediators, and arbitrators must first receive the order and sign the required nondisclosure agreement.

Highly confidential attorneys’-eyes-only material may be disclosed only to the people identified for that category, including in-house counsel for a party and certain outside counsel. The order requires everyone with access to take reasonable precautions against unauthorized or accidental disclosure.

Use and court filings

Recipients may use protected discovery material only to prosecute or defend this case and related appeals. They may not use it for business, commercial, competitive, or other litigation purposes. The order does not waive objections to discovery, privileges, or protections, and it does not decide whether evidence will be admissible at trial.

A party filing protected material with the court must publicly file a redacted version and file the unredacted version under seal. The party must also submit a letter brief and supporting declaration explaining on a particularized basis why continued sealing is justified. Other parties may respond within seven days. The court retains discretion over whether to keep material confidential when it is submitted in connection with a motion or proceeding and states that it is unlikely to seal material introduced into evidence at trial.

Challenges, subpoenas, and end of the order

A party may challenge a confidentiality designation before trial by serving written notice explaining the objection. If the parties cannot promptly resolve the dispute, counsel must bring it to the court under the court’s individual practices.

The order does not prevent a party from producing protected material in response to a lawful subpoena or other compulsory process, or when required by law or a government agency. The party must notify the producing party as soon as reasonably possible and, if the timing permits, at least 10 days before disclosure.

Within 60 days after final disposition of the case, including appeals, recipients must return protected material or destroy it with the producing party’s permission and certify that they have not retained copies or other reproductions. Attorneys specifically retained for the case may keep archival copies of specified case materials, which remain subject to the order. The order survives the end of the litigation, and the court retains jurisdiction to enforce its obligations and impose contempt sanctions.

Ruling

Judge Paul G. Gardephe issued the stipulated confidentiality agreement and protective order on April 7, 2022. The order governs discovery handling and does not resolve the parties’ underlying claims or defenses.