Rokt Corp. v. AdsPostX, Inc.

Background

The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c) for confidential information exchanged during discovery, including expedited discovery authorized by the court on March 29, 2023. The court found good cause to issue a tailored order for the pretrial phase because disclosure of some discovery material could harm a producing party or a third party with confidentiality obligations.

Confidentiality Designations

The order permits a producing person to designate material “Confidential” when its public disclosure is restricted by law or could harm business, commercial, financial, or personal interests. Listed examples include previously undisclosed financial information, ownership or control information concerning a nonpublic company, business and marketing plans, product-development information, and personal or intimate information.

The more restrictive “Highly Confidential – Attorneys’ Eyes Only” designation is reserved for highly sensitive information that the producing party reasonably believes could give the receiving party a business advantage despite the order’s protections.

Disclosure Limits and Procedures

Confidential material may be disclosed to specified recipients, including the parties, counsel, insurers and their counsel, litigation-support vendors, mediators or arbitrators, certain document recipients, potential witnesses, experts, deposition stenographers, and the court. Highly Confidential material may be disclosed to a narrower group that generally excludes the parties and their insurers, while permitting disclosure to counsel, specified vendors, mediators or arbitrators, certain document recipients, experts, stenographers, and the court.

Before certain recipients receive protected material, counsel must provide the protective order and obtain a signed nondisclosure agreement. The order also establishes procedures for marking documents and deposition testimony, correcting an earlier failure to designate material, objecting to a designation, and requesting additional disclosure limits.

Sealing, Privilege, and Personally Identifying Information

The order states that a confidentiality designation does not create an entitlement to file material under seal. A party seeking to file confidential material under seal must submit a letter-motion explaining the basis, and must publicly file a redacted version while filing the unredacted version under seal. The court retains discretion over whether to protect designated material submitted in connection with a motion or other proceeding and states that it is unlikely to seal material introduced at trial.

If privileged or attorney-work-product material is inadvertently disclosed, the disclosure does not waive the protection. The receiving party generally must return or destroy the material within five business days after a claim of inadvertent disclosure and provide counsel’s certification. The producing party must then provide a privilege log, and the receiving party may ask the court to compel production. The order also requires secure handling of personally identifying information and immediate notice of a data breach.

Disposition and Effect

The court ordered all persons subject to the protective order—including the parties, their representatives, agents, experts, consultants, third parties providing discovery, and others with actual or constructive notice—to comply with it. Protected material may be used only for prosecuting or defending this action and related appeals, not for business, competitive, or unrelated litigation purposes. Within 30 days after final disposition, recipients must return or, with the producing person’s permission, destroy protected material and certify that they have done so, subject to limited archival retention by attorneys. The order survives termination of the litigation, and willful violations may result in contempt sanctions. The opinion does not decide the parties’ underlying claims.