Johnson v. Ironshore Specialty Insurance Company

Background

All parties requested a protective order under Federal Rule of Civil Procedure 26(c) to govern nonpublic and competitively sensitive information that could be disclosed during discovery. The parties, through counsel, agreed to the proposed terms. The court found good cause for issuing a properly limited confidentiality order for the pretrial phase of the case.

What the Order Covers

The order applies to the parties and their officers, agents, employees, attorneys, people acting with them, and anyone with actual notice of the order. It prohibits them from disclosing discovery material marked “Confidential” except as the order permits. A producing party may designate only material it reasonably and in good faith believes falls within specified categories, including previously undisclosed financial information; information about ownership or control of a nonpublic company; business, product-development, or marketing plans; proprietary information concerning the handling and disposition of insurance claims; personal or intimate information; and other categories the court later approves.

The producing party generally must clearly mark confidential portions and provide a redacted copy for future public use. Deposition testimony and exhibits may be designated during the deposition or within 30 days after it ends. During that 30-day period, the entire deposition transcript must be treated as confidential.

Permitted Disclosures and Use

Confidential material may be disclosed to the parties and certain involved employees and insurers; counsel and their litigation staff; outside vendors; mediators or arbitrators; people identified as authors or recipients of a document; potential witnesses; experts and other specialized advisers; deposition stenographers; the court and appellate courts; regulators; and anyone else the producing party approves in writing. Mediators, arbitrators, witnesses, experts, and specialized advisers must receive the order and sign a nondisclosure agreement before receiving the material. Recipients may use the material only to prosecute or defend this case and related appeals, not for another lawsuit or purpose.

The order does not waive objections to discovery, privileges, or protections, and it does not decide whether evidence will be admissible at trial. It also states that the court has not found that any designated material is actually confidential and may decide whether to give material confidential treatment. The court warned that it is unlikely to seal material introduced at trial without the specific findings required by law.

Challenges, Privilege, and End of the Order

A party may object to a confidentiality designation before trial by giving written notice stating the grounds. If the dispute is not resolved, the parties must bring it to the court under the court’s individual practices, and the party claiming confidentiality bears the burden of proving that the designation is proper. A party seeking extra disclosure limits, such as an attorneys’-eyes-only restriction, likewise bears the burden of proving that the limits are necessary.

The order permits production in response to a lawful subpoena or other compulsory process, subject to notice to the producing party when reasonably possible. If privileged or otherwise protected material is inadvertently produced, the production does not waive the protection. The receiving party must return the material and may use it only in connection with a motion to compel, subject to the order’s procedures.

Within 60 days after final disposition of the action, including appeals, recipients must make commercially reasonable efforts to return, destroy, or safeguard confidential material and certify their compliance. Counsel may retain archival copies of specified litigation materials, but those copies remain subject to the order. The order continues after the litigation ends, and the court retains jurisdiction to enforce it and impose contempt sanctions.

Disposition

The court ordered the parties and other covered persons to follow the agreed protective-order terms. The opinion is a discovery order and does not resolve the parties’ underlying claims. Judge Gregory H. Woods signed the order on June 8, 2022.