Edwards v. Cybex International, Inc.

Nature of the Order

This was a stipulated protective order, meaning the parties agreed to confidentiality procedures and asked the court to enter them. The court found good cause under Rule 26(c) of the Federal Rules of Civil Procedure and ordered that the procedures apply to information and documents exchanged during the pretrial phase.

Materials Covered

The order covers material produced or obtained in discovery, including responses to discovery requests, deposition testimony and exhibits, electronically stored information, tangible items, writings, photographs, videos, transcripts, and information directly derived from those materials.

A producing party or nonparty may designate information as confidential if it contends that the information includes legally protected information, trade secrets, confidential research, technical, commercial, or financial information, medical information, personal identity information, nonparty employment records, information from nonpublic investigations, or other information whose public disclosure would cause unreasonable harm or burden.

Confidentiality Procedures

A party or nonparty generally must mark documents “CONFIDENTIAL.” Deposition testimony may be designated on the record before the deposition ends or, within 30 days after the deposition, by designating the entire testimony as confidential. A producing party may also mark material “attorney’s eyes only,” which prevents disclosure to another party.

Confidential material may be used only in this action, including any appeal. Permitted recipients include the court and its staff, attorneys and their personnel, certain people identified on the documents, court reporters and videographers, document-processing contractors, witnesses when reasonably necessary during depositions, and consultants or experts who sign the required acknowledgment. Other recipients require written consent from the producing party or a court order.

The order does not itself authorize filing a confidential document under seal. Sealing must follow the applicable court rules. Before using another party’s or nonparty’s confidential material at a hearing, the party intending to use it must give prompt notice so the other party or nonparty may seek relief. If the case goes to trial, the parties must submit a separate order concerning confidential materials at trial.

Challenges, Inadvertent Disclosures, and Data Security

A confidential designation remains in place unless the parties agree to change it or the court orders a change. A party that cannot obtain agreement may ask the court to change the designation, and a nonparty that produced the material must receive notice and an opportunity to be heard when applicable.

An inadvertent failure to designate material as confidential does not, by itself, waive the right to designate it later. The receiving party must make reasonable efforts to treat the material as confidential after receiving notice. Similar procedures protect privileged or attorney-work-product material that was inadvertently produced, provided the producing party promptly gives notice and describes the basis for the claim of protection.

Each party must make reasonable efforts to protect confidential documents. A party that learns of a confidentiality breach must promptly notify the producing party of the breach’s scope and nature and make reasonable efforts to remedy it.

After the Case Ends and Enforcement

Within 60 days after the action ends, including any appeals, each party must return or destroy confidential documents and notify the producing party that it has done so. Attorneys may retain copies of confidential documents submitted to the court. The confidentiality obligations continue after the action ends.

The order binds counsel, law firms, the parties, and other people and organizations covered by its terms. A person who reviews covered confidential information agrees to the court’s jurisdiction for enforcement or contempt proceedings concerning the order. Violations may lead to a motion for sanctions, costs, attorney’s fees, or other appropriate legal action.

Ruling

Magistrate Judge Paul E. Davison entered the stipulated protective order. The order addressed discovery confidentiality and did not resolve the merits of the parties’ claims.