Rady v. Boston Consulting Group, LLC

Background

The parties could not agree on a protective order governing confidential information in the case. A protective order is a court-approved set of rules controlling how litigation materials may be designated, viewed, shared, and used. Magistrate Judge Barbara Moses considered the competing proposed orders and the parties’ arguments.

Court’s rulings

1. Confidentiality designations. The court agreed with the defendants that the case should use separate tiers for Confidential Material, Highly Confidential Material, and Source Code. The court stated that tiered designations are appropriate in a trade-secrets case.

2. Access by the parties. Max A. Rady may review Confidential Material in the presence of outside counsel but may not retain or remove copies. A limited number of the defendants’ current business-side employees may also receive read-only access when they genuinely need the material to participate in defending the action. The identities of those employees must be disclosed. The parties may be denied access to material carrying a higher confidentiality designation.

3. Access by authors and recipients. Designated confidential material may be disclosed on a read-only basis to the document’s author, addressee, or any other person shown on the face of the document as having received a copy. Before receiving the material, that person must sign the required undertaking, and a copy must promptly be provided to counsel for the producing party. The read-only restriction does not apply when Rady is the author, addressee, or recipient.

4. Confidentiality designations within documents. The court adopted Rady’s position that, when confidential material is reasonably separable from nonconfidential material, only the confidential portion should be designated. The court explained that redaction is reasonable when a small portion is confidential and the remaining document remains understandable and potentially useful. It is unreasonable when the document is mainly about confidential information and a redacted version would be incomprehensible or useless for litigation.

5. Sealing. The protective order must state that confidential or highly confidential designations do not create a presumption that a sealing motion will be granted or that the material will be treated as confidential at trial. The sealing provision must also refer to the individual practices of the assigned magistrate judge and district judge.

6. Printing limits. The court adopted the defendants’ proposed limit: the parties may not request to print more than the greater of 250 pages or 10% of the total source code measured by line count. The producing party may not unreasonably withhold permission to exceed that limit when asked.

Disposition

The court directed the parties to finalize the protective-order language consistent with the order and submit a final document, approved as to form, for the court’s review no later than August 11, 2022. This was a discovery-related procedural order; it did not resolve the underlying dispute.