Abercrombie & Fitch Co. v. Hatley USA Inc.
- Andrew Carter
- 1:21-cv-08131
- U.S. District Court · Southern District of New York
- 12
In Abercrombie & Fitch v. Hatley USA, Magistrate Judge Netburn approved a protective order limiting use and disclosure of sensitive discovery information.
The parties, their officers, agents, employees, attorneys, litigation-support personnel, experts, witnesses, and other people with actual notice of the order who receive or access designated discovery material. The order limits disclosure and use of material marked “Confidential” or “Confidential – Attorneys’ Eyes Only” and remains binding after the litigation ends.
What happened
Abercrombie & Fitch Co. and Abercrombie & Fitch Trading Co. sued Hatley USA, Inc., doing business as Hatley and Little Blue House; Hatley USA also brought counterclaims. The parties jointly requested rules protecting nonpublic and competitively sensitive information exchanged during discovery.
The order creates two protected categories: “Confidential” and “Confidential – Attorneys’ Eyes Only.” It limits who may see that material, requires some recipients to sign nondisclosure agreements, restricts use to this lawsuit and related appeals, and sets procedures for challenging confidentiality designations and requesting permission to file protected material under seal.
The court approved the stipulated protective order after finding good cause. Magistrate Judge Netburn stated that the order itself does not decide whether any material is truly confidential and that the court retains authority to enforce the order and impose contempt sanctions.
The detailed version
- Abercrombie & Fitch Co. v. Hatley USA Inc. · No. 1:21-cv-08131
- Andrew Carter
- July 28, 2022
Background
Abercrombie & Fitch Co. and Abercrombie & Fitch Trading Co. are the plaintiffs. Hatley USA, Inc., doing business as Hatley and Little Blue House, is the defendant and also the counterclaim-plaintiff. The plaintiffs are the counterclaim-defendants. Through their lawyers, the parties jointly asked the court to enter a protective order under Federal Rule of Civil Procedure 26(c) for nonpublic and competitively sensitive information that might be exchanged during discovery.
Protective-order terms
The order allows a producing party to designate only material that it reasonably and in good faith believes includes specified sensitive information, such as previously undisclosed financial information, business or marketing plans, product-development information, purchaser information, vendor or customer identities, personal or intimate information, or other sensitive nonpublic information.
The order creates two designations: “Confidential” and “Confidential – Attorneys’ Eyes Only.” Confidential material may be disclosed only to listed recipients, including the parties, counsel and their support personnel, litigation vendors, certain mediators or arbitrators, specified document recipients, potential witnesses, qualified experts, stenographers, and the court. Many of those recipients must first receive the order and sign a nondisclosure agreement.
Attorneys’ Eyes Only material is subject to narrower disclosure limits. It may generally be shown only to court personnel, counsel and their necessary employees, certain document creators or recipients, specified witnesses, litigation-support companies, court reporters, qualified experts who sign nondisclosure agreements, or others with the producing party’s written consent or a court order.
The order provides procedures for designating deposition testimony, correcting an omitted designation, objecting to a designation, and requesting additional disclosure limits. Protected information may be used only to prosecute or defend this action and related appeals. The order also requires public redacted filings and court permission before any document is filed under seal. After final disposition, including appeals, recipients generally must return or destroy protected material within 60 days and certify that they kept no copies, subject to a limited archival-copy exception for attorneys’ case files.
Court’s action and effect
The court found good cause and ordered the parties and other persons with notice to follow the stipulated protective order. The court did not determine that any particular discovery material is actually confidential; it retained discretion to decide whether to give confidential treatment to designated material. The court also retained jurisdiction as needed to enforce the order or impose contempt sanctions. The opinion is a discovery-related protective order and does not decide the underlying claims or counterclaims.
Read the full 12-page opinion on CourtListener, the free public archive maintained by the Free Law Project.