Dolce v. The LIV Group Inc.

Nature of the order

The parties, acting through counsel, jointly requested a confidentiality and protective order under Federal Rule of Civil Procedure 26(c). The court found good cause for an appropriately tailored order governing the pretrial phase of the case and entered the stipulated order. This opinion addresses discovery confidentiality and does not decide the underlying claims.

Confidential discovery material

The order defines “Discovery Material” as information produced or disclosed during discovery. A producing party may designate material as “Confidential” only when it reasonably and in good faith believes the material includes specified protected information, such as previously undisclosed financial information, ownership or control information about a nonpublic company, business or marketing plans, product-development information, personal or intimate information, or another category the court later protects.

The producing party generally must clearly mark the protected material and provide a version for future public use with the confidential information redacted. Special procedures apply to deposition exhibits and transcript portions. A producing party may also correct an earlier failure to designate material by notifying prior recipients in writing before trial.

Permitted disclosures and use

Confidential discovery material may be disclosed only to the categories listed in the order. These include the parties and certain insurers, litigation counsel and their staff, outside vendors working on the case, mediators or arbitrators, people identified as recipients of a document, potential witnesses, experts and other specialized advisers, deposition stenographers, and the court and its personnel. Before disclosure to certain witnesses, experts, mediators, or arbitrators, counsel must provide the order and obtain a signed nondisclosure agreement.

Recipients may use confidential discovery material only to prosecute or defend this case and related appeals. They may not use it for business, commercial, competitive, or other litigation purposes. The order does not restrict a party's rights concerning its own documents or information produced in the case.

Court filings and challenges

A party filing confidential material or a filing that reveals it must publicly file a redacted version and submit the unredacted version under seal, along with required courtesy copies. The order requires a party seeking continued sealing to provide a particularized justification. The court retains discretion over whether to treat designated material as confidential when it is submitted in connection with a motion or other proceeding, and warns that material introduced at trial is unlikely to remain sealed.

A party may object to a confidentiality designation before trial by giving written notice specifying the grounds. A party seeking additional disclosure limits, such as attorneys'-eyes-only treatment in extraordinary circumstances, must likewise give written notice. Unresolved disputes are to be presented to the court under its individual practices.

Privilege and enforcement

The order provides that an inadvertent disclosure of attorney-client privileged or attorney-work-product material does not waive the protection. After receiving notice, the receiving party generally must return or destroy the material within five business days and provide counsel's certification. The producing party must then provide a privilege log, while the receiving party may ask the court to compel production. The producing party retains the burden of establishing that the material is privileged or protected.

Within 60 days after final disposition of the case, including appeals, recipients must return or, with the producing party's permission, destroy confidential discovery material and certify that they retained no copies or reproductions. Counsel specifically retained for the case may keep an archival copy of specified case materials, but those copies remain subject to the order. The order survives termination of the litigation, and the court retains jurisdiction as needed to enforce it or impose contempt sanctions.