Bookends & Beginnings LLC v. Amazon.com, Inc.

Background

Bookends & Beginnings LLC sued Amazon.com, Inc., Hachette Book Group, Inc., HarperCollins Publishers L.L.C., Macmillan Publishing Group, LLC, Penguin Random House LLC, and Simon & Schuster, Inc. The opinion is an agreement and protective order for discovery in that action. The parties, through counsel, requested an order under Federal Rule of Civil Procedure 26(c) to protect nonpublic and competitively sensitive information that might be disclosed during discovery.

What the Order Does

The order creates two levels of protection: “Confidential” and “Highly Confidential.” Confidential information includes previously undisclosed commercial or financial information, ownership information concerning nonpublic companies, trade secrets and other confidential business information, certain information previously disclosed only to government agencies, personal or intimate information, and other information later given confidential status by the court. Highly Confidential information is confidential information that the producing person or entity reasonably and in good faith believes could cause a significant competitive or commercial disadvantage if disclosed to someone involved in competitive decision-making for a competitor, retailer, or business partner.

The order restricts disclosure of protected discovery material to specified recipients and generally limits its use to prosecuting or defending this action and related appeals. Permitted recipients include the court, court reporters, outside counsel and their litigation-support personnel, certain people who previously had lawful access to the information, qualified experts and consultants, mediators and their staff, and specified in-house counsel and employees meeting the order’s restrictions. Required recipients generally must receive the order and sign a non-disclosure agreement, subject to stated exceptions.

The order sets procedures for marking documents and deposition testimony, correcting an earlier failure to designate material, handling third-party subpoena productions, objecting to confidentiality designations, and resolving discovery disputes. It requires public redacted filings when protected material is filed with the court and requires a particularized application and supporting declaration for sealing. It also states that the court has not itself found that any designated material is confidential and may decline to keep material confidential, especially if it is introduced at trial.

Ruling and Effect

Judge Debra C. Freeman found good cause for an appropriately tailored confidentiality order and entered the parties’ agreed protective order. The order binds the parties and other people with notice of it, remains effective after the litigation ends, and allows the court to enforce its obligations and impose contempt sanctions. Within 60 days after final disposition, including appeals, recipients must generally return or destroy protected material and certify that they have not retained copies, subject to an archival-copy exception for specified litigation attorneys. The order does not waive discovery objections or privileges, determine evidence’s admissibility, or resolve the underlying claims.