Gordon v. BlueTriton Brands, Inc.

Background

Phil Gordon, individually and on behalf of others similarly situated, sued BlueTriton Brands, Inc. The parties jointly asked the court to enter a protective order governing confidential or proprietary information produced by the parties or nonparties during discovery.

Protective-order requirements

The order allows either party to designate documents, deposition testimony, or other information as “Confidential.” The definition includes trade secrets, proprietary business information, competitively sensitive information, personal information about BlueTriton’s current or former employees, and other information that the designating party believes in good faith could harm business or personal privacy interests if disclosed.

Confidential information generally may be disclosed only to the parties, their litigation counsel and staff, retained experts and consultants, the court and its personnel, deposition and trial witnesses, and other people who agree in writing to follow the order. The information may be used only for this lawsuit. Recipients may not reveal it to people who are not authorized to receive it.

A receiving party may object to a confidentiality designation. If the producing party does not remove the designation, the receiving party may ask the court to do so. The material remains confidential unless and until the court rules otherwise. The order also provides procedures for designating deposition testimony and documents produced by nonparties.

Inadvertent production and case conclusion

The order protects against waiver of privileges when privileged or work-product materials are inadvertently produced, provided the required written notice is given promptly. Copies generally must be returned or destroyed within five days after notice, and the material may not be used unless the producing party agrees or the court grants a motion to compel.

Within 60 days after the final termination of the lawsuit through settlement or completion of appeals, confidential material generally must be returned or destroyed at the producing party’s option. Counsel may retain certain litigation files, including work product, pleadings, motion papers, discovery responses, deposition transcripts, and exhibits.

Court’s qualification of the order

Judge Furman ordered that the stipulation binds the parties to treat designated material as confidential, but expressly stated that the court had not reviewed the documents and made no finding that any document was actually confidential. Any such decision would be made document by document under the court’s rules and the presumption favoring public access to judicial documents. The court also declined to approve any provision that would allow the parties to file documents under seal without first obtaining a separate court order.