Portal Instruments, Inc. v. LEO Pharma A/S

Nature of the Order

The court entered a stipulated protective order under Federal Rule of Civil Procedure 26(c). Portal Instruments, Inc. and LEO Pharma A/S, through counsel, requested protection for confidential and non-public information expected to be exchanged during discovery. The court found good cause for a tailored order governing the pretrial phase of the case.

Confidentiality Designations

The order allows a producing person to designate as confidential only material whose public disclosure is restricted by law or would harm the producing person’s or a third party’s business, commercial, financial, or personal interests. Listed examples include previously undisclosed financial information, ownership or control information about a non-public company, business plans, product-development information, marketing plans, and personal or intimate information.

The producing person or counsel generally must clearly mark the protected portions and provide a version with the confidential information redacted. Deposition testimony may be designated during the deposition or within 30 days after the deposition. Material produced without a confidentiality designation may later be designated confidential before trial by written notice to prior recipients.

Who May Receive the Information

People subject to the order may disclose confidential discovery material only to specified recipients, including the parties, certain insurers and their counsel, litigation counsel and staff, litigation-support vendors, mediators or arbitrators, document authors and recipients, potential witnesses, experts and other specialized advisers, deposition stenographers, and the court and appellate courts. Several categories of recipients must first receive the order and sign a non-disclosure agreement.

The material may be used only to prosecute or defend this action and any appeals. It may not be used for business, commercial, competitive, or other litigation purposes. The order does not restrict a person’s use of that person’s own documents or information, or information obtained independently of the federal discovery rules.

Challenges, Court Filings, and Privileged Material

A party may object to a confidentiality designation or request stricter limits, such as attorneys’-eyes-only treatment. If the parties cannot resolve the issue, they must present it to the court under the judge’s individual rules.

The order does not create an automatic right to file material under seal. A party seeking to seal documents must file a letter-motion explaining the basis for sealing, and the court retains discretion over whether confidential treatment is appropriate. Parties must publicly file redacted versions and file unredacted versions under seal when required by the order. The court stated that it is unlikely to seal or otherwise protect confidential material introduced as evidence at trial.

The order also addresses inadvertently disclosed attorney-client privileged or attorney-work-product material. Such disclosure does not waive the protection. After a claim of inadvertent disclosure, the receiving party generally must return or destroy the material within five business days, provide a certification, and may ask the court to compel production. The disclosing party retains the burden of establishing that the material is privileged or protected.

Duration and Enforcement

The protective order continues after the litigation ends. Within 30 days after final disposition, recipients generally must return or destroy confidential discovery material and certify that they have not retained copies or other reproductions. Attorneys specifically retained for the case may keep archival copies of specified case materials, but those copies remain subject to the order.

The court retained jurisdiction to enforce the order and impose sanctions for contempt. The order states that willful violations could result in punishment for contempt of court.