Weeks v. Authentic Brands Group Inc.

Background

Robin Weeks, individually and on behalf of others similarly situated, and Authentic Brands Group Inc. submitted an agreed proposed protective order. The order governs discovery in the case. The court found good cause for issuing an appropriately tailored confidentiality order and ordered the covered parties and people to comply with it.

Confidentiality rules

The order defines “Discovery Material” broadly to include documents, written discovery responses, deposition testimony, and tangible materials provided during discovery. Covered people may not disclose discovery materials except as the order permits, and may use them only to prosecute or defend this case, including amended pleadings and appeals.

The producing person may designate material as “Confidential” when it includes categories such as research and development; business or marketing strategy; commercial communications; nonpublic financial information; risk analysis; trade secrets; proprietary records; intellectual property; supplier or customer information; cost, pricing, sales, production, or manufacturing data; personal or intimate information; or information required to be kept confidential by law. Material derived from those categories may also receive a confidential designation, as may categories later given confidential status by the court.

The order permits disclosure, only as reasonably necessary for the case, to specified people. These include the parties and certain representatives, outside and in-house counsel and their litigation staff, certain employees and document recipients, witnesses, experts and other specialized advisers, court reporters, litigation-support providers, and the court. Some recipients must first receive the order and sign a nondisclosure agreement.

Challenges, privilege, sealing, and other procedures

The order establishes procedures for challenging a designation or correcting a designation. The parties generally must confer and, if they cannot resolve the issue, schedule a call with the court under the judge’s individual rules.

If a producing person claims that privileged or otherwise protected material was inadvertently disclosed, the disclosure alone does not waive the claim. The producing person retains the burden of establishing protection and must give written notice and, generally, a privilege log. The receiving party generally must return or destroy the material, but a party that already incorporated it into work product may use the order’s limited challenge-notice process.

Confidential discovery material and filings disclosing it must be filed under seal until further court order. The order requires later redacted public filings and statements addressing why continued sealing is appropriate, while directing the parties to make reasonable efforts to minimize sealing. It also addresses discovery produced by nonparties, subpoenas for protected material, and the continued protection of confidential material used at hearings or trial.

Disposition

Judge Analisa Torres ordered the stipulated protective order on April 20, 2023. After the final conclusion of the case by a judgment not subject to further appeal or by settlement, confidential discovery material generally must be returned or destroyed within the time limits stated in the order if the producing person makes a written request. The order does not require the production of particular documents, waive objections to disclosure or admissibility, or prevent a party from seeking modification or additional protection. The order is governed by New York law, and disputes under it are to be presented to this court.

Classification

This is a procedural order concerning discovery and confidentiality. It does not decide the underlying claims or defenses.