Interboro Packaging Corp. v. Capital Plastics Int'l, Inc.

Order

The court entered a stipulated protective order under Federal Rule of Civil Procedure 26(c). The order governs the handling of nonpublic and competitively sensitive information that the parties may disclose during discovery. The court found good cause for an appropriately tailored order covering the pretrial phase of the case.

Confidentiality designations

A producing party may designate only portions of discovery material as confidential when it reasonably and in good faith believes the material contains previously undisclosed proprietary information. The order gives supplier names, pricing, and information about relationships between the parties and their suppliers as examples. A producing party may also seek confidential status for other categories if the court grants that request.

The order establishes marking procedures for documents and other discovery material. Deposition testimony and exhibits may be designated during the deposition or within 30 days afterward. During that 30-day period, the entire deposition transcript must be treated as confidential. A producing party may later correct an earlier failure to designate material by providing written notice and replacement copies within two business days.

Who may receive confidential material

Covered recipients may disclose confidential discovery material only to specified people, including the parties, insurers and their counsel, attorneys and their support staff working on the case, outside service providers, mediators or arbitrators, certain people identified in documents, potential witnesses, experts and specialized advisers, deposition stenographers, and the court. Witnesses, experts, mediators, arbitrators, and specialized advisers must first receive the order and sign a nondisclosure agreement. Counsel must retain those agreements and produce them to opposing counsel before the person testifies or when the case ends, whichever comes first.

Court filings and challenges

The order does not decide whether designated material is actually confidential, waive objections or privileges, or determine whether evidence is admissible at trial. The court retained discretion to decide whether to give material confidential treatment. It also warned that it was unlikely to seal material introduced at trial merely because it had previously been designated confidential.

When filing confidential material with the court, the parties must publicly file a redacted version and file the unredacted version under seal. A party seeking sealing must submit an application and supporting declaration with a particularized justification. A party may object to a confidentiality designation before trial, and may request additional limits on disclosure. If the parties cannot resolve those disputes, they must present them to the court under the court's individual practices.

Use, return, and enforcement

Recipients may use confidential discovery material only to prosecute or defend this case and any related appeals, not for another purpose or proceeding. The order permits production in response to a lawful subpoena or other compulsory legal process, subject to notice to the producing party when reasonably possible and, if timing allows, at least 10 days before disclosure.

Recipients must take precautions against unauthorized or accidental disclosure. Within 60 days after final disposition of the case, including appeals, recipients generally must return or destroy the confidential material and certify that they kept no copies or reproductions. Attorneys specifically retained for the case may keep archival copies of certain case files and work product, but those copies remain subject to the order. The order survives the end of the litigation, and the court retained jurisdiction to enforce it and impose contempt sanctions.