Applied Bolting Technology Products, LLC v. TurnaSure LLC

Background

The parties submitted a stipulated protective order, meaning they agreed on proposed rules for handling information exchanged before trial. Judge Furman found good cause to issue a tailored order governing the pretrial phase of the action.

Protective-Order Terms

The order covered discovery material, defined to include information provided or created during discovery or settlement negotiations, such as documents, electronically stored information, deposition testimony, declarations, interrogatory answers, admissions, and other discovery materials. A party or nonparty could designate material as “Confidential” if it had not been made public or was otherwise eligible for protection under Federal Rule of Civil Procedure 26(c)(1)(G) or applicable state law.

The order also created a more restrictive “Highly Confidential—Attorneys’ Eyes Only” category for qualifying trade secrets and other commercially sensitive information. Examples included sensitive technical, financial, marketing, health, medical, credit, banking, and other business information whose disclosure could seriously harm the producing person’s competitive position.

People subject to the order generally could disclose confidential material only to specified recipients, including the parties, case counsel and support staff, document authors or recipients, certain witnesses and experts, deposition stenographers, and the court. Attorneys’-eyes-only material could not be disclosed to the parties generally, but could be shared with counsel, specified document-related persons, qualifying experts, stenographers, and the court. Experts and certain other recipients had to receive the order and sign a nondisclosure agreement before receiving protected material.

Protected material filed with the court, and filings that revealed it, were to be submitted under seal with a public redacted copy. The order allowed challenges to confidentiality designations and requests for additional limits, established procedures for handling material disclosed by mistake, excluded certain already-public or lawfully obtained information from protection, and required protected material to be returned or destroyed within 30 days after final disposition unless the producing person permitted destruction instead. The order also stated that violations could lead to contempt sanctions and that the court would retain jurisdiction to enforce the order.

Court’s Clarifications and Ruling

Judge Furman ordered the stipulated protective order, but expressly stated that the court had not reviewed the documents and therefore made no finding that any document was confidential. Whether a document qualified for protection would be decided, if necessary, through document-specific review under the court’s procedures and the presumption favoring public access to judicial documents.

The court did not approve any provision that purported to let the parties file documents under seal without a prior court order. Although the order allowed discovery material from the related Trademark Trial and Appeal Board opposition proceeding to be used in this federal litigation without being reproduced, Judge Furman clarified that the protective order governed only this federal case and that the court would not exercise jurisdiction over conduct in the Board proceeding.