One Hanover, LLC v. Highgate Hotels, Inc.

Background

One Hanover, LLC and the defendants—the Witkoff Group LLC, Symphony CP (Park Lane) Owner LLC, New Valley LLC, and Highgate Hotels, Inc.—submitted a proposed joint protective order concerning discovery in this action. Judge Marrero entered the order after the parties stipulated and agreed to it.

Confidentiality designations

The order permits a party or another person or entity producing discovery to designate specifically identified material as “CONFIDENTIAL” when the producer determines in good faith that disclosure would create a high risk of competitive harm. Material containing nonpublic commercially, financially, or personally sensitive information—such as trade secrets, unpublished financial data, business or product plans, or customer information—may be designated “AEO HIGHLY CONFIDENTIAL,” meaning attorneys’-eyes-only highly confidential material. The order states that total revenue from allegedly infringing services or products, and the identities of people or entities using allegedly infringing services or products in commerce, are not attorneys’-eyes-only highly confidential material.

Documents must be clearly marked with the applicable designation. Deposition testimony and exhibits may be designated on the record or within five days after receipt of the deposition transcript by written notice identifying the relevant pages, lines, or exhibits. A failure to designate material initially does not waive the designation right; a later supplemental designation may make the material confidential from the time of that designation.

Permitted disclosures and nondisclosure agreements

Confidential information may be disclosed to specified categories of people, including limited executive representatives of the parties, counsel and their service providers, qualifying experts and consultants, witnesses and deponents, certain people identified on a document, deposition stenographers, the courts, and others with the producing party’s written consent. Experts, consultants, witnesses, and deponents receiving the information under the specified provisions must first sign a nondisclosure agreement and may use the information only for purposes allowed by the order.

The order does not restrict a party’s use of its own confidential information or prevent a person or entity from later waiving its own designation.

Sealing and designation disputes

Attorneys’-eyes-only highly confidential information filed with the court, and filings that disclose it, must be submitted under seal under the order’s procedures. Any sealing or redaction must be narrowly tailored and consistent with the presumption that judicial documents should be publicly accessible. The parties’ consent or a confidentiality agreement alone is not enough to overcome that presumption.

A party objecting to an attorneys’-eyes-only designation must send a letter explaining the objection. The designating party and receiving party must meet and confer within three business days after the objection letter is received. If they cannot resolve the dispute, the producing party must file a public letter motion seeking permission to file the material under seal and must separately file the proposed sealed material.

Other provisions and ruling

The protective order does not determine how confidential discovery material will be treated at trial or an evidentiary hearing; that issue may be addressed in a later court order. People with access to confidential information must take reasonable precautions against unauthorized disclosure. After final disposition of the action, including appellate proceedings, confidential information generally must be returned or destroyed within 30 days, subject to the order’s provisions for retained counsel files, recordkeeping, electronic material, and certifications.

The order also establishes procedures for responding to subpoenas or document demands for confidential information, permits additional parties or nonparties to join the order, allows requests for modification or relief, preserves objections and privileges, and states that the court retains jurisdiction to enforce the order. Judge Marrero ordered that the joint protective order govern discovery in the action.