Gatto v. Fujitec America, Inc.

Background

The parties, through counsel, requested a confidentiality agreement and protective order under Federal Rule of Civil Procedure 26(c). That rule allows a court to protect parties or other people from harm during discovery, including by limiting disclosure of sensitive information. The parties represented that they might need to disclose nonpublic and competitively sensitive information in this action. The court found good cause for an appropriately limited order governing the pretrial phase.

Terms of the Order

The order covers discovery material designated “Confidential.” A producing party may designate only material that it reasonably and in good faith believes includes previously undisclosed financial information; information about ownership or control of a nonpublic company; business plans, product-development information, or marketing plans; personal or intimate information about an individual; or another category that the court later gives confidential status.

Confidential material may be disclosed only to specified recipients, including the parties, certain counsel and support personnel, outside vendors, insurers and their counsel, mediators or arbitrators, document authors and addressees, certain witnesses, experts and other specialized advisers, deposition transcription staff, and the court. Before receiving confidential material, certain witnesses, experts, mediators, and arbitrators must receive the order and sign a nondisclosure agreement.

Recipients may use the material only to prosecute or defend this action and any appeals. They may not use it for business, commercial, competitive, or other litigation purposes. The order does not waive objections to discovery, privilege, or other protections, and it does not decide whether evidence will be admissible at trial.

Court Filings and Disputes

A party filing confidential material must publicly file a redacted version and file the unredacted version under seal. A party seeking to keep material sealed must provide a particularized justification, and the court warned that it may unseal material if the required findings are not made. The court also stated that it is unlikely to seal material introduced at trial merely because it was previously designated confidential.

Parties may object to confidentiality designations or request additional disclosure limits. If the parties cannot promptly resolve such a dispute, counsel must bring it to the court under the court’s individual practices. The order also permits disclosure when required by a lawful subpoena, compulsory process, law, or government agency, subject to notice to the producing party when reasonably possible and, if the timing permits, at least 10 days before disclosure.

Within 60 days after final disposition of the action, including appeals, recipients generally must return or destroy confidential material and certify that they have not kept copies or other reproductions. Counsel specifically retained for the action may keep archival copies of specified case materials, but those copies remain subject to the order. The order survives termination of the litigation, and the court retains jurisdiction to enforce it and impose contempt sanctions.

Disposition

Judge Paul G. Gardephe ordered the stipulated confidentiality and protective terms on July 14, 2022. The order governs the people covered by it, including the parties, their representatives, agents, experts, consultants, third parties providing discovery, and others with actual or constructive notice of the order.