UMB Bank, N.A. v. Bristol-Myers Squibb Company

Background

UMB Bank, N.A., solely in its capacity as trustee under a Contingent Value Rights Agreement involving Bristol-Myers Squibb Company and Equiniti Trust Company, and Bristol-Myers Squibb Company stipulated to a protective order for discovery in this action. The parties stated that discovery was likely to involve confidential, proprietary, private, and privileged information.

The court entered the stipulation under Federal Rule of Civil Procedure 26(c), which permits protective orders concerning discovery, and Federal Rule of Evidence 502(d), which permits an order protecting attorney-client privilege and work-product protection against waiver through certain disclosures. The parties and their counsel agreed to follow the order even before it was endorsed by the court.

Main provisions

The order defines protected material as discovery material designated as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL,” or “ATTORNEY’S EYES ONLY.” It covers documents, testimony, interrogatory answers, admissions, tangible items, and informal exchanges connected with discovery.

“Confidential Information” includes material such as trade secrets, proprietary business information, nonpublic personal or client information, nonpublic financial information, business plans, research and development information, and other information whose disclosure could cause competitive, commercial, or financial harm. “Highly Confidential Information” includes certain foreign private data and especially sensitive nonpublic technical, financial, sales, scientific, product, pricing, and business-strategy information. “Attorney’s Eyes Only Information” is extremely sensitive proprietary, trade-secret, competitive, or commercial information whose disclosure to another party or that party’s employees or officers would create a substantial risk of serious harm that less restrictive measures could not avoid.

Protected material may be used only to prosecute, defend, or attempt to settle this action, including appeals. The order generally permits confidential information to be disclosed to counsel, certain party employees, approved experts, the court, court personnel, mediators, professional vendors, and certain witnesses. Highly confidential information may not be disclosed to party employees. Attorney’s-eyes-only information may be disclosed only to counsel and other specifically listed categories, not to party employees.

The order requires reasonable security measures, including access controls for electronic data, audit trails for litigation-support sites, password protection or encryption for downloaded electronic material, and secure storage for paper material. People who receive protected material generally must sign an acknowledgment agreeing to be bound by the order.

The order establishes procedures for challenging confidentiality designations. The designating party must respond to a written challenge, and the parties must meet and confer before seeking court intervention. The designating party bears the burden of persuasion in a challenge, and the material remains protected while the challenge is pending unless the court orders otherwise.

The order also provides that accidental production of privileged or work-product-protected material does not waive the privilege or protection, except for intentional disclosure. After notice of an inadvertently produced privileged document, the recipient must stop reviewing or using it and return, sequester, or destroy copies within the time specified by the order. The order includes procedures for contesting privilege claims and seeking court review.

The confidentiality obligations continue after final disposition unless the designating party agrees otherwise in writing or a court orders otherwise. Within 90 calendar days after final disposition, receiving parties must use good-faith efforts to return or destroy highly confidential and attorney’s-eyes-only material, subject to stated exceptions, including certain backup systems, legally required records, and archival copies retained by counsel.

Court’s qualification and ruling

The court approved the parties’ stipulation, as reflected by the “SO ORDERED” notation dated August 9, 2022. The court specifically stated that it had not reviewed the documents referenced in the stipulation and therefore made no finding that any particular documents were confidential. Whether a document is confidential is to be decided, if necessary, through document-specific review under the court’s rules and the presumption favoring public access to judicial documents.

The court also stated that it did not approve any provision purporting to authorize the parties to file materials under seal without a prior court order. Thus, the order governs discovery confidentiality and privilege but does not itself determine the confidentiality of particular documents or automatically permit sealed filings.