Lixenberg v. The Northstar Group, Inc.

Background

The parties, through counsel, jointly requested a protective order under Federal Rule of Civil Procedure 26(c). They sought procedures to protect nonpublic and competitively sensitive information that might be produced during discovery. Judge Katherine Polk Failla found good cause for an appropriately limited confidentiality order governing the pretrial phase of the case.

Terms of the Order

The order covers discovery material—information produced or disclosed during discovery—that a producing party designates as “Confidential.” It also creates a more restrictive “Highly Confidential—Attorney’s Eyes Only” designation. A producing party may designate only material it reasonably and in good faith believes includes specified categories, including previously undisclosed financial information, ownership or control information about a nonpublic company, business or marketing plans, personal or intimate information, or other sensitive or proprietary information protected under Rule 26.

Covered people generally may disclose confidential material only to specified recipients. Those recipients include the parties and their insurers, counsel and necessary staff, outside service providers, mediators or arbitrators, certain people identified in documents, potential witnesses, experts and other specialized advisers, deposition stenographers, the court, people later authorized by court order, and others approved in writing by the parties. Witnesses, experts, mediators, and arbitrators must first receive the order and sign a nondisclosure agreement.

The material may be used only to prosecute or defend this action and related appeals. The order does not waive objections to discovery, privilege, or other protections, and it does not decide whether evidence is admissible at trial. It also states that the court has not determined that designated material is actually confidential and may decide whether to give it confidential treatment. The order warns that materials introduced at trial are unlikely to remain sealed solely because they were previously designated as confidential.

Court Filings and Disputes

A party seeking to file confidential discovery material or papers that reveal it must publicly file a redacted version and file the unredacted version under seal, along with an application and supporting declaration explaining why sealing is justified. A party objecting to a confidentiality designation must give written notice stating the grounds for the objection. The parties must try in good faith to resolve the dispute and may bring an unresolved dispute to the court after five business days. Similar procedures apply to requests for additional restrictions, including attorney-only access.

The order allows a party to produce protected material in response to a lawful subpoena or other compulsory legal process, subject to notice requirements. It also provides that an inadvertent production of privileged or work-product-protected material does not waive the protection. After notice, the receiving party generally must return or destroy the identified material within five business days, while retaining the stated right to ask the court to decide whether the protection applies.

Disposition

Judge Katherine Polk Failla issued the stipulated protective order and ordered the parties and other persons with notice of it to comply, subject to contempt. Within 60 days after final disposition of the action, including appeals, recipients generally must return or destroy confidential discovery material and certify that they have done so. Attorneys specifically retained for the action may keep limited archival copies, which remain subject to the order. The order continues after the litigation ends, and the court retains authority to enforce its obligations and address contempt.