Marsh USA Inc. v. Machua Millett

Order and purpose

The parties, through counsel, jointly requested a protective order under Federal Rule of Civil Procedure 26(c). The court found good cause for an appropriately tailored order governing the pretrial phase of the case. The order applies to the parties and their corporate parents, successors, and assigns; their representatives, agents, experts, and consultants; third parties providing discovery; and other people with actual or constructive notice of the order. Violations may be punished as contempt of court.

Confidentiality designations

A producing party may designate material as “Confidential” only when it reasonably and in good faith believes the material includes specified types of previously undisclosed information, including financial information, ownership or control information, business plans, product-development or marketing information, personal or intimate information, or another category later given confidential status by the court. A producing party may designate material as “Attorneys’ Eyes Only” when it reasonably and in good faith believes the material contains trade secrets or competitively sensitive business information whose disclosure is highly likely to cause significant harm to its business or competitive position.

The order establishes procedures for marking documents, redacting public copies, and designating deposition testimony and exhibits. A producing party may also correct an earlier failure to designate material by notifying prior recipients in writing before trial.

Permitted disclosures and use

Confidential material may be disclosed only to specified recipients, including the parties and their insurers, litigation counsel and their staff, certain vendors, mediators or arbitrators, document authors and recipients, potential witnesses, experts, stenographers, videographers, the court, and others approved in writing by the producing party. Attorneys’ Eyes Only material has narrower permitted-disclosure categories and may be disclosed to litigation counsel, certain vendors, mediators or arbitrators, experts, the court, stenographers or videographers, in-house counsel with a need to know, and others approved in writing by the producing party.

Before certain witnesses, experts, mediators, or arbitrators receive protected material, they must receive the order and sign a non-disclosure agreement. Protected material may be used only to prosecute or defend this action and related appeals, not for business, commercial, competitive, or other litigation purposes. The order also requires recipients to take precautions against unauthorized or accidental disclosure.

Privileges, objections, and end of the case

The order does not waive objections to discovery, privilege, work-product protection, or evidentiary objections. If privileged or work-product material is inadvertently disclosed, the disclosure does not waive the protection under the order’s terms. The receiving party must return or destroy the material within five business days after notice, subject to procedures for a privilege log and a possible motion to compel production. The disclosing party retains the burden of proving that the material is privileged or protected.

Within 60 days after the final disposition of the action, including appeals, recipients generally must return or destroy protected material and certify that they kept no copies or summaries. Lawyers specifically retained for the case may keep archival copies of certain litigation files, which remain subject to the order. The order survives termination of the litigation, and the court retains jurisdiction to enforce it and impose contempt sanctions.

Sealing and the court’s clarification

The order requires a party seeking to file material under seal to file a public redacted copy and a letter brief and supporting declaration explaining, on a particularized basis, why continued sealing is justified. It warns that the court may unseal documents unless closure is essential to protect higher values and narrowly tailored to that purpose. The court also retains discretion over whether to give confidential treatment to protected material submitted in connection with motions or other proceedings and stated that it is unlikely to seal material introduced as evidence at trial.

The court specifically clarified that entering the stipulated order did not determine whether the referenced documents were actually confidential. That issue would be decided, if necessary, through document-by-document review under the court’s procedures and the presumption favoring public access to judicial documents. The court also did not approve any provision purporting to let the parties file documents under seal without a prior court order.