McGlynn v. Magzter, Inc.

Nature of the Order

The parties stipulated to, and the court ordered, a protective order governing confidential information disclosed or produced in discovery. The document states that it was stipulated to on November 11, 2022, and was ordered on November 14, 2022.

Information That May Be Marked Confidential

The order permits a party or nonparty to designate information as confidential when it contains confidential or proprietary information. Listed categories include nonpublic financial information; information about ownership or control of a nonpublic company; business plans, product development information, and marketing plans; personal or intimate information about an individual; confidential business information; information subject to a confidentiality obligation to a third party; and other categories later given confidential status by the court.

A producing party or nonparty generally must mark each page of a confidential document with the word “confidential.” Deposition testimony may be designated during the deposition or afterward through prompt written notice. A party may also request that a deposition involving confidential information occur only in the presence of people allowed to receive confidential documents.

Use and Disclosure Limits

Confidential documents may be used only in this action. The order allows disclosure to the court and its staff, attorneys and their staff, people identified on the document as its authors or recipients, court reporters or videographers, parties, and people retained to assist with the action who sign a declaration agreeing to be bound by the order.

Before disclosure to an outside person retained for technical or expert services or testimony, opposing counsel must receive at least 10 days’ notice. The notice must reasonably describe the person. An objection made within seven days prevents disclosure until the dispute is resolved, and the objecting party must arrange a meeting between the parties and may bring a motion for a protective order within the periods stated in the order.

A party serving a subpoena on a nonparty must provide that nonparty with a copy of the protective order. If confidential information is disclosed to someone who was not entitled to receive it, the parties must make reasonable efforts to retrieve it.

Designation Disputes and Court Filings

A party or nonparty that accidentally fails to designate a document as confidential may correct the mistake within seven days after discovering it by giving notice and producing a newly designated copy. A confidential designation remains in place unless the parties agree to change it or the court orders a change.

A party seeking to change a designation without agreement may move for an order changing it. The designating party or nonparty must show that the designation satisfies Federal Rule of Civil Procedure 26(c), which authorizes protective orders in appropriate circumstances. The protective order does not itself authorize filing a document under seal. A party intending to use another party’s or a nonparty’s confidential document at a hearing or trial must give prompt notice so that the affected party or nonparty may seek relief from the court.

End of the Case and Privileged Materials

Within 60 days after the action ends, including any appeals, each party must return or destroy all confidential documents and notify the producing party or nonparty that it has done so. Attorneys may retain a copy of confidential documents submitted to the court. The order’s confidentiality obligations survive the end of the action.

If a party or nonparty inadvertently discloses or produces a document protected by privilege or the work-product doctrine, it must promptly notify the receiving party and describe the basis for the protection. If the required notice is given, the disclosure does not waive the privilege or protection. A recipient must comply with Federal Rule of Civil Procedure 26(b)(5)(B), which governs handling inadvertently produced privileged information.

Disposition

Judge Analisa Torres entered the stipulated protective order. The opinion does not decide the underlying claims or defenses between David McGlynn and Magzter, Inc.