In Re Amazon.com, Inc. eBook Antitrust Litigation
- Gregory Woods
- 1:21-cv-00351
- U.S. District Court · Southern District of New York
- 19
In re Amazon eBook Antitrust Litigation: Judge Freeman ordered limits on using and sharing sensitive discovery information.
The parties in the antitrust litigation, their lawyers and representatives, designated experts, mediators, certain employees and in-house counsel, court personnel, and other people who receive protected discovery material are subject to the order’s confidentiality and use restrictions.
What happened
In re Amazon.com, Inc. eBook Antitrust Litigation concerns the parties’ request for rules protecting nonpublic and competitively sensitive information exchanged during discovery. The parties agreed to the proposed terms through their lawyers.
The order defines “Confidential” and “Highly Confidential” information and limits who may receive, use, or disclose it. Covered information generally may be used only to prosecute or defend this case, subject to rules for challenges, court filings, subpoenas, return or destruction of materials, and possible contempt for violations.
Judge Debra C. Freeman found good cause and ordered the parties and other persons subject to the order to follow its terms. The order does not decide whether any information is ultimately confidential or whether evidence may be admitted at trial.
The detailed version
- In Re Amazon.com, Inc. eBook Antitrust Litigation · No. 1:21-cv-00351
- Gregory Woods
- Apr. 15, 2022
Background
The parties asked the court to enter a protective order under Federal Rule of Civil Procedure 26(c). A protective order sets rules for handling information exchanged during discovery. The parties stated that they needed protection for nonpublic commercial, financial, personal, and competitively sensitive information, and they agreed to the proposed terms.
What the Order Covers
The order creates two protected categories:
- Confidential information: This includes previously undisclosed commercial or financial information, ownership or control information concerning nonpublic companies, trade secrets and other confidential business information, certain information previously disclosed only to a government agency, personal or intimate information, and other information later given confidential status by the court. - Highly Confidential information: This is Confidential information that the producing person or entity reasonably and in good faith believes could cause a significant competitive or commercial disadvantage if shared with someone involved in competitive decision-making at a competitor, a physical-book or eBook retailer, or a business partner.
The producing party may designate discovery materials by marking them “Confidential” or “Highly Confidential.” Deposition testimony may be designated during the deposition or within 30 calendar days after receipt of the final transcript. A producing party may also correct a missed designation before the case ends by giving written notice and providing replacement versions.
Who May Receive the Information
Confidential information may be disclosed to the court and its personnel, court reporters, outside counsel and their litigation-support personnel, certain people who previously had lawful access to the information, qualifying current employees or former participants in relevant communications, testifying or consulting experts who are not involved in competitive decision-making, mediators and their staff, and specified in-house counsel and employees subject to the order’s restrictions.
Highly Confidential information may be disclosed only to the narrower group identified in the order, generally excluding the additional in-house counsel and nonlegal employees permitted to receive Confidential information. Before most permitted recipients receive protected material, counsel must provide them with the order and obtain a signed nondisclosure agreement. The agreement requires recipients to keep the material confidential, use it only for this litigation, and submit to the court’s authority concerning disputes under the order.
Use, Court Filings, and Challenges
Recipients may use protected discovery material only to prosecute or defend this action and appeals from it, not for another case or purpose. The order does not prevent a producing party from using its own information, does not waive objections or privileges, and does not decide whether evidence is admissible at trial.
The order requires public redacted filings when protected material is filed with the court, along with a separate request and supporting declaration seeking permission to file an unredacted version under seal. It states that the court may unseal material if the required specific findings are not made. The court also warned that it is unlikely to seal or otherwise protect discovery material introduced at trial solely because it had previously been designated as Confidential or Highly Confidential.
A party may object to a confidentiality designation before trial. The parties must first meet and confer; if they cannot resolve the dispute, they must submit a joint letter describing their positions under the court’s procedures. The order also establishes procedures for third-party subpoena productions, including temporary Highly Confidential treatment and deadlines for designations.
Disposition
The court found good cause for an appropriately limited confidentiality order and ordered the parties, their representatives, lawyers, people acting with them, and others with actual notice to comply. Judge Debra C. Freeman signed the order on April 15, 2022. The order requires most recipients to return or destroy protected materials within 60 days after final disposition of the action, including appeals, while allowing specified archival copies for attorneys. It continues to bind covered recipients after the litigation ends, and the court retains authority to enforce it and impose contempt sanctions.
Read the full 19-page opinion on CourtListener, the free public archive maintained by the Free Law Project.