Esper Kallas v. The G & P Agency, Inc.

Background

The parties, through their lawyers, jointly requested a protective order under Federal Rule of Civil Procedure 26(c). They sought to protect nonpublic and competitively sensitive information that could be disclosed during discovery. The court found good cause for an appropriately limited order.

What the Order Covers

The order defines “Discovery Material” as information 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, personal or intimate information, or another category that the court later approves.

Confidential material generally must be clearly marked, and the producing party must provide a copy with the confidential information redacted for future public use. Deposition testimony and exhibits may be designated during the deposition or within 30 days afterward. A party may also later designate material that was previously produced without a confidentiality designation.

Disclosure Limits

People subject to the order may disclose confidential material only to specified recipients, including the parties, certain insurers and their counsel, counsel and litigation-support personnel, outside service providers, mediators or arbitrators, people identified on a document, potential witnesses, experts and other specialized advisers, deposition transcription staff, and the court. Witnesses, experts, advisers, mediators, and arbitrators must receive the order and sign a nondisclosure agreement before receiving the material.

Recipients may use confidential 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.

Court Filings and Challenges

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

A party may object to a confidentiality designation or request additional disclosure limits by written notice identifying the grounds. If the parties cannot promptly resolve the dispute, counsel must bring it to the court under the court’s individual practices.

Duration and Enforcement

If confidential material is sought by subpoena or other compulsory process, the recipient may produce it as required by law but must provide notice to the producing party as soon as reasonably possible and, when allowed, at least 10 days before disclosure. Recipients must take reasonable precautions against unauthorized or accidental disclosure.

Within 60 days after the final disposition of the case, including appeals, recipients generally must return or destroy confidential material and certify that they have not retained copies or other reproductions. Lawyers retained for this case may keep archival copies of specified case files and work product, but those copies remain subject to the order. The order continues after the litigation ends, and the court retained jurisdiction to enforce it and impose contempt sanctions.

Disposition

On March 8, 2023, Judge Paul G. Gardephe ordered the stipulated confidentiality agreement and protective order. This was a discovery-related procedural order, not a decision on the parties’ underlying claims.