Fora Financial Holdings, LLC v. New York Tribeca Group, LLC

Nature of the Order

The court entered a confidentiality agreement and stipulated protective order under Federal Rule of Civil Procedure 26(c). The parties had agreed to the order, and the court found good cause for an appropriately tailored order governing information and documents exchanged in the case.

Confidentiality Designations

Counsel may designate information as “CONFIDENTIAL” when, in good faith, the designation is needed to protect commercially sensitive, proprietary, trade-secret, or other sensitive nonpublic information. Counsel may use the stricter “ATTORNEYS’ EYES ONLY” designation for trade secrets, know-how, or commercial information—such as trading strategies, pricing, or profits—where disclosure could cause competitive harm that less restrictive measures could not avoid.

The order limits disclosure of “CONFIDENTIAL” information to specified recipients, including the parties, outside and in-house counsel and their staff, necessary employees, consultants and experts, the court, litigation-support personnel, and people who already possessed or knew the information. “ATTORNEYS’ EYES ONLY” information generally may be disclosed only to outside counsel and staff, one identified in-house lawyer for each party who agrees to the order, necessary consultants or experts, the court, litigation-support personnel, and people who already possessed or knew the information. Further court authorization is required for other disclosures.

Permitted Uses and Challenges

Protected information may be used only in this action or in lawsuits against third parties involved in the alleged misappropriation of Fora Financial Holdings, LLC’s confidential information. The order says that a confidentiality designation does not establish that information is relevant, admissible, confidential, or a trade secret. A party may challenge a designation after written notice identifying the challenged material. If the parties cannot resolve the dispute, either may seek a ruling from the court.

The order also addresses deposition designations, later corrections to confidentiality labels, designations made for nonparties, personally identifying information, and materials produced under a claim of attorney-client privilege or attorney-work-product protection. In general, inadvertently disclosed privileged material must be returned or destroyed within five business days after a claim of inadvertent disclosure, subject to procedures for challenging the claim. At the end of the litigation, protected information must generally be returned or certified as destroyed, subject to counsel’s ability to retain protected working files.

Sealing and Court Findings

The parties must follow the court’s procedures when seeking to file documents containing protected information under seal. Judge Jesse Furman expressly stated that the court had not reviewed the documents and therefore made no finding that they were confidential. Any confidentiality determination will be made, if necessary, on a document-by-document basis, subject to the presumption that judicial documents are publicly accessible. The court did not approve any provision that would permit the parties to file documents under seal without a prior court order.

Disposition

The court so ordered the stipulated protective order, subject to the stated limitation concerning sealed filings and the court’s reservation of any future determination about whether particular documents are confidential.