Nortek Inc. v. ITT LLC

Background

Nortek Inc. and ITT LLC, through their counsel, jointly requested a protective order under Federal Rule of Civil Procedure 26(c). They sought protection for nonpublic and competitively sensitive information that might be disclosed during discovery. The court found good cause for an appropriately tailored confidentiality order governing the pretrial phase of the case.

Confidentiality Rules

The order defines “Discovery Material” as information of any kind produced or disclosed during discovery. A producing party may designate material as “Confidential” only when it reasonably and in good faith believes the material includes previously undisclosed financial information, information about ownership or control of a nonpublic company, business or marketing plans, product-development information, personal or intimate information, or another category the court later protects.

People subject to the order generally may not disclose confidential discovery material except as the order permits. Permitted recipients include the parties and their insurers, case counsel and their staff, outside vendors, mediators or arbitrators, certain people identified in documents, possible witnesses, experts and other specialized advisers, deposition stenographers, and the court. Witnesses, experts, mediators, and arbitrators must receive the order and sign a nondisclosure agreement before receiving the material.

Recipients may use confidential discovery material only to prosecute or defend this case and related appeals. They may not use it for business, commercial, competitive, or other litigation purposes. The order does not waive objections to discovery, privileges, or protections, and it does not decide whether evidence will be admissible at trial.

Sealing and Confidentiality Disputes

A party filing confidential material must publicly file a redacted version and file the unredacted version under seal. A party seeking sealing must also submit a letter brief and supporting declaration explaining, on a particularized basis, why continued sealing is justified. The court retains discretion over whether to keep material confidential when it is submitted in connection with a motion or other proceeding and stated that it is unlikely to seal material introduced into evidence at trial.

Parties may object to confidentiality designations or request additional disclosure limits, such as attorneys’-eyes-only treatment, before trial. If the parties cannot promptly resolve the dispute, they must bring it to the court under the judge’s individual practices.

Privilege and End of the Case

If privileged or work-product material is disclosed inadvertently, the disclosure does not itself waive the protection. After receiving a claim of inadvertent disclosure, the receiving party must return or destroy the material within five business days and provide counsel’s certification. The producing party must then provide a privilege log, while the receiving party may ask the court to order production. The producing party retains the burden of showing that the material is privileged or otherwise protected.

Within 60 days after final disposition of the case, including appeals, recipients must return or, with the producing party’s permission, destroy confidential discovery material and certify that they have kept no copies or other reproductions. Specifically retained attorneys may keep archival copies of certain case-related materials, but those copies remain subject to the order. The order survives termination of the litigation, and the court retains jurisdiction to enforce it and impose contempt sanctions.

Ruling

Judge Philip M. Halpern ordered the stipulated confidentiality and protective order on January 23, 2023. The order governs discovery and confidentiality; the opinion does not resolve the parties’ underlying claims or defenses.