Richardson v. Pond5, Inc.

Nature of the Order

This is a stipulated confidentiality agreement and protective order under Federal Rule of Civil Procedure 26(c). The parties, through counsel, requested protection for nonpublic and competitively sensitive information that might be disclosed during discovery. The court found good cause for an appropriately limited order governing the pretrial phase of the case.

Confidential Information

The order permits a producing party to designate only material that it reasonably and in good faith believes includes certain previously undisclosed information, such as financial information, information about ownership or control of a nonpublic company, business plans, product-development or marketing information, or personal or intimate information. The court may also give confidential status to other categories later.

The producing party or its counsel must clearly mark protected material and provide a version with the confidential information redacted for future public use. Deposition testimony and exhibits may be designated during the deposition or within 30 days after the deposition. During that 30-day period, the entire deposition transcript must be treated as confidential. A producing party may also correct an earlier failure to designate material by providing written notice and replacement copies.

Permitted Disclosures and Use

Confidential discovery material may be disclosed to the parties, certain counsel and support personnel, outside vendors working on the case, mediators or arbitrators, people identified as recipients of a document, potential witnesses, experts or other specialized advisers, deposition stenographers, and the court. Witnesses, experts, mediators, and arbitrators generally must first receive the order and sign a nondisclosure agreement. The material may be used only to prosecute or defend this case and related appeals, not for another purpose or lawsuit.

People who receive confidential material must take precautions against unauthorized or accidental disclosure. Within 60 days after the final resolution of the case, including appeals, recipients must return or, with the producing party’s permission, destroy the material and certify that they retained no copies or reproductions. Attorneys specifically retained for the case may keep archival copies of certain case-related materials, but those copies remain subject to the order. The order continues after the litigation ends, and the court retains jurisdiction to enforce it or impose contempt sanctions.

Challenges, Court Filings, and Subpoenas

A party may object to a confidentiality designation before trial by giving written notice explaining the objection. If the parties cannot resolve the dispute, they must bring it to the court under the court’s practices. A party seeking extra disclosure restrictions, such as an attorneys’-eyes-only designation, must follow a similar process.

When confidential material is filed with the court, the parties must publicly file a redacted version and file the unredacted version under seal in accordance with the court’s rules. A party seeking sealing must provide a particularized justification. The order warns that the court is unlikely to seal material introduced at trial merely because it was previously designated confidential. The order also permits disclosure in response to a lawful subpoena or other compulsory legal process, subject to notice requirements; the producing party bears the burden of opposing the disclosure if it chooses to do so.

Disposition and Limits

The court entered the stipulated protective order. It did not waive any objection to discovery, waive privilege or other protection, decide whether any material is confidential, or rule on the admissibility of evidence at trial. The order therefore governs discovery handling but does not resolve the underlying claims. The opinion is dated September 27, 2022, while the document was filed on September 28, 2022.