McGucken v. Shutterstock, Inc.

Background

The parties requested a protective order under Federal Rule of Civil Procedure 26(c) for nonpublic and competitively sensitive information that might be disclosed during discovery. The parties agreed through counsel to the order’s terms, and the court found good cause to issue a confidentiality order for the pretrial phase of the case.

Order

The court issued the stipulated confidentiality agreement and protective order. It allows a producing party to label only appropriate portions of discovery materials as “Confidential,” including previously undisclosed financial information, ownership or control information, business plans, product-development information, marketing plans, and personal or intimate information.

The order creates a more restrictive “Highly Confidential—Attorney’s Eyes Only” category for information whose disclosure could significantly harm an individual or a business’s competitive position. Examples include certain contact and payment information, highly proprietary marketing and pricing strategies, plans and code concerning Shutterstock’s systems, and confidential financial terms of third-party agreements.

Confidential materials may be disclosed only to specified recipients, including the parties, their insurers and counsel, outside counsel and their staff, litigation vendors, certain mediators or arbitrators, certain witnesses and experts who sign a nondisclosure agreement, deposition stenographers, and the court. Highly confidential materials may be shown only to a narrower group, including outside counsel, independent experts or consultants, the court, court reporters acting officially, certain people identified on a document, and specified litigation-support personnel. Recipients may use the materials only to prosecute or defend this action and related appeals.

The order provides procedures for marking discovery materials and deposition testimony, correcting an overlooked confidentiality designation, objecting to a designation, and seeking additional disclosure limits. It does not waive objections to discovery or privilege and does not decide whether any evidence may be admitted at trial.

The order also establishes procedures for filing protected materials with the court. A party must publicly file a redacted version and seek permission to file an unredacted version under seal, supported by a particularized justification. The order warns that the court may not seal materials introduced at trial and retains discretion to decide whether confidential treatment is appropriate.

After final disposition of the action, including appeals, recipients generally must return or destroy confidential materials within 60 days and certify that they have not retained copies or summaries. The order remains binding after the litigation ends, and the court retains jurisdiction to enforce it and impose contempt sanctions. It also excludes certain materials obtained before the order or from third-party or public sources, subject to the order’s stated exceptions.

Disposition and effect

The court issued the protective order and directed the clerk to terminate the motions at Dkt. Nos. 38 and 40. The order concerns discovery confidentiality and does not resolve the merits of McGucken’s claims against Shutterstock, Inc.