Schoenadel v. YouGov America, Inc.

Background

The parties submitted a stipulated and proposed protective order governing documents, exhibits, deposition testimony, recordings, and other information exchanged in the lawsuit. The order applies to material produced by a party or nonparty in response to discovery requests, subpoenas, or other discovery obligations.

Confidential and Highly Confidential Material

The order allows a party to designate material as “Confidential” when it reasonably believes, in good faith, that the material contains sensitive security, safety, financial, personal, medical, commercial, or proprietary information. A party may designate material as “Highly Confidential” when disclosure to the requesting party would likely cause serious injury or harm to a party’s or third party’s financial, business, personal, reputational, or other interests.

Confidential material may be used only for the lawsuit, including any appeal. Disclosure is limited to listed categories, including the parties, counsel and their litigation personnel, the court and court reporters, certain witnesses who sign an acknowledgment, people identified as recipients of a document, and mediators. People receiving confidential material must agree to follow the order’s restrictions.

Highly confidential material is subject to tighter limits. It may be shown to the court, outside counsel and their involved employees, the parties under specified conditions and with counsel present, qualified experts who sign an acknowledgment, independent litigation-support personnel, and other people authorized by the court or the parties. The order also permits disclosure to one specially designated in-house legal employee, subject to notice, objection, and possible court review.

Designation, Challenges, and Privilege

The order describes how to mark documents and deposition transcripts as confidential or highly confidential. A party may later request a change in a designation, and a party challenging a designation must continue treating the material as protected until the court rules otherwise. The order does not waive objections to discovery, privilege, or evidentiary objections.

The order provides that an accidental disclosure of attorney-client privileged, work-product, or other protected material will not waive the protection if the producing party gives notice and takes the required corrective steps within the stated period. It also establishes agreed categories and procedures for privilege logs.

The confidentiality restrictions continue during and after the lawsuit. After final termination, including appeals, the parties must make reasonable efforts to destroy protected material, although counsel may retain certain case documents while keeping them confidential.

Ruling

Judge Jesse M. ordered the stipulated protective order on April 28, 2023. The court expressly stated that it had not reviewed the referenced documents and made no finding that they were confidential. Whether particular materials are confidential may be decided later through document-by-document review. The court also declined to approve any provision that would permit filing documents under seal without a prior court order, in light of the presumption favoring public access to judicial documents.