Theragun, Inc. v. Tzumi Electronics LLC
- Paul Gardephe
- 1:21-cv-07803
- U.S. District Court · Southern District of New York
- 17
In Therabody v. Tzumi, Judge Lehrburger entered a stipulated protective order governing confidential discovery materials in the federal case.
The parties, their representatives, attorneys, employees, experts, consultants, service providers, mediators, third parties producing discovery, and other people with actual or constructive notice of the order are bound by its terms when they receive or handle protected material.
What happened
In Therabody, Inc. v. Tzumi Electronics LLC, the parties asked the court to protect nonpublic and competitively sensitive information they might exchange during discovery. The court found good cause and entered their agreed protective order under Federal Rule of Civil Procedure 26(c).
The order limits disclosure of material marked “Confidential” or “Highly Confidential — Outside Attorneys’ Eyes Only.” It permits disclosure only to specified people, including certain employees, attorneys, vendors, experts, consultants, mediators, and the court, subject to additional conditions. The material may be used only to prosecute or defend this case and related appeals, not for business, competitive, or other litigation purposes.
Judge Lehrburger also established procedures for challenging confidentiality designations, requesting sealed filings, handling accidentally disclosed privileged material, and returning or destroying protected material after the case ends. The order remains binding after the litigation and permits the court to enforce it and impose contempt sanctions.
The detailed version
- Theragun, Inc. v. Tzumi Electronics LLC · No. 1:21-cv-07803
- Paul Gardephe
- Jan. 11, 2023
Background
The parties, through counsel, jointly requested a confidentiality agreement and protective order under Federal Rule of Civil Procedure 26(c). They sought protection for nonpublic and competitively sensitive information that might be produced during discovery. The court found good cause for an appropriately tailored order governing the pretrial phase of the action.
Protective designations
The order defines “Discovery Material” broadly as information produced or disclosed during discovery. A producing party may designate material “Confidential” or “Highly Confidential — Outside Attorneys’ Eyes Only” if it reasonably and in good faith believes the material includes previously undisclosed financial information, ownership or control information, business plans, product-development or marketing information, personal or intimate information, or another category that deserves confidential treatment.
The order covers the protected material itself, as well as information copied, extracted, or derived from it; copies, excerpts, summaries, and compilations; and testimony, conversations, or presentations that include it. It does not protect information already public, information that later becomes public without violating the order, or information the recipient already knew or lawfully obtained from another source without a confidentiality obligation.
Who may receive protected material
“Confidential” material may be disclosed to no more than three employees of the receiving party if they first sign a nondisclosure agreement; outside counsel and their litigation-support staff; outside vendors and service providers working on the case; mediators or arbitrators who sign the required agreement; people identified as the author, addressee, or recipient of a document; experts or consultants who satisfy the order’s conditions; deposition stenographers; and the court and its personnel.
“Highly Confidential — Outside Attorneys’ Eyes Only” material may be disclosed only to the categories listed in the order that exclude receiving-party employees. Experts and consultants must not be involved in competitive decision-making for a party or its competitor. Before disclosure to an expert or consultant, the receiving party generally must provide information about that person’s identity, residence, resume, employers, litigation-related compensation or funding, and prior expert testimony. The producing party may object, after which the parties must confer and, if necessary, present the dispute to the court.
Sealing, objections, and use
The order provides procedures for filing documents under seal or in redacted form, including filing public redacted versions, sealed copies, and unredacted copies with chambers. The parties must confer about proposed redactions. If they cannot agree, the party seeking continued sealing must file a letter motion addressing the applicable Second Circuit standards and proposing specific redactions.
The court retains discretion over whether to give confidential treatment to discovery material submitted in connection with a motion or other proceeding. The order warns that material introduced at trial is unlikely to remain sealed. Parties may object to confidentiality designations or request additional disclosure limits, and unresolved disputes must be brought to the court under its individual practices.
Protected material may be used only for prosecuting or defending this action and related appeals. The order does not waive discovery objections, privileges, or arguments about admissibility. It also provides procedures for subpoenas and other compulsory process, requires precautions against unauthorized disclosure, and addresses the return or destruction of inadvertently produced privileged material without waiving the privilege when the order’s conditions are met.
Disposition and continuing effect
The court entered the stipulated protective order. Within 60 days after final disposition of the action, including appeals, recipients generally must return or destroy protected material and certify that they retained no copies or summaries, although litigation counsel may keep specified archival materials subject to the order. The order survives termination of the litigation, and the court retains jurisdiction to enforce its obligations and impose contempt sanctions.
Read the full 17-page opinion on CourtListener, the free public archive maintained by the Free Law Project.