Smith v. Bath & Body Works, Inc.

Background

The parties submitted a stipulated protective order under Federal Rule of Civil Procedure 26(c) and the court’s local rules. The order governs documents, testimony, and other information produced, given, or filed during discovery and other proceedings in the case, including copies, excerpts, and summaries.

Protective-order terms

A party may designate material as “Confidential” when it believes in good faith that the material contains sensitive personal information, trade secrets, or confidential or proprietary information whose disclosure could cause competitive, business, financial, reputational, or community-related harm. The order does not cover material already in the public domain, subject to the order’s stated limitations.

Confidential material may be used only for this litigation, including appeals. The permitted recipients include the parties; counsel and counsel’s employees; the court and court personnel; qualified experts who agree to be bound by the order; certain officers, directors, vendors, witnesses, and other persons authorized by agreement or court order. People receiving the material generally must be told about the order’s restrictions and, where required, sign a certification agreeing to follow it.

The order establishes procedures for marking documents, interrogatory answers, deposition testimony, and court filings as confidential. It allows parties to challenge confidentiality designations and to seek changes to the order or relief concerning specific material. Confidentiality restrictions continue during and after the litigation, including appeals. At the end of the case, Smith’s counsel must assemble and return confidential material and related work product to defense counsel and provide a certificate concerning its return.

Court’s action and limits

The court so ordered the stipulation on May 25, 2022. The order states that the court had not reviewed the documents covered by the stipulation and therefore made no finding that any document was confidential. Any such finding would require a document-by-document review under the court’s procedures and the presumption of public access to judicial documents.

The court also stated that it was not so ordering any provision that purported to allow the parties to file documents under seal without a prior court order. The order separately provides that, after receiving an executed and court-approved copy, Bath & Body Works, LLC must respond to Smith’s notices to produce within 10 days.

Disposition

Judge Jesse M. Furman approved the stipulated protective order, subject to the stated limitation that it does not itself authorize sealing documents or determine that particular documents are confidential. This was a discovery-related procedural order and did not resolve the underlying claims.