Xposure Photo Agency Inc. v. PR Consulting, Inc.

Background

Xposure Photo Agency Inc. and Backgrid USA, Inc. sued PR Consulting, Inc. The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c) because discovery would involve confidential documents or information. The parties agreed to the proposed terms, and the court found good cause to issue a tailored order for the pretrial phase of the case.

Confidentiality Designations

The order covers discovery material produced or disclosed during discovery. A producing person may designate material as confidential only when its public disclosure is restricted by law or would harm business, commercial, financial, or personal interests, or the interests of a third party owed confidentiality. Listed categories include:

- Previously undisclosed financial information, including fees, royalties, payments, sales reports, and margins; - Previously undisclosed information about ownership or control of a nonpublic company; - Business plans, product-development information, and marketing plans; - Trade secrets, competitively sensitive technical information, and other confidential business information; - Information received in confidence from third parties; - Personal or intimate information about an individual; and - Other information the producing party in good faith believes is protected under Rule 26(c)(1)(G), or that the court later gives confidential status.

The order does not provide blanket protection for all discovery responses and does not automatically entitle confidential material to be filed under seal.

Disclosure and Use

People subject to the order may disclose confidential discovery material only to specified recipients, including the parties and their insurers, counsel and their staff, litigation-support vendors, mediators or arbitrators, document authors and addressees, potential witnesses, experts and other specialized advisers, court personnel, and appellate courts. Certain recipients must first sign a nondisclosure agreement, which counsel must retain and provide to opposing counsel at specified times.

Recipients may use confidential discovery 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 restrict a person’s use of that person’s own documents or information, or information obtained independently of the discovery process.

The order permits disclosure in response to a lawful subpoena or other compulsory process, subject to advance written notice to the producing person when allowed. It also requires secure handling of personally identifying information and immediate notice of a data breach involving that information.

Challenges, Court Filings, and Privilege

A party may object to a confidentiality designation or request additional disclosure limits by written notice. If the parties cannot resolve the dispute, they must present it to the court under the applicable court rules. A confidentiality designation does not itself establish that material will be filed under seal. A party seeking to file material under seal must first submit a letter explaining the basis, and the court retains discretion over confidential treatment of material filed with motions or other proceedings.

The order provides that an inadvertent disclosure of attorney-client privileged or attorney-work-product material does not waive the protection. After a claim of inadvertent disclosure, the receiving party must return or destroy the material within five business days and certify that it did so. The producing party must then provide a privilege log, and the receiving party may ask the court to order production. The producing party retains the burden of establishing that the material is privileged or protected.

Duration and Ruling

The protective order survives termination of the litigation. Within 30 days after final disposition, recipients must return or destroy confidential discovery material and certify that they have not retained copies or summaries, subject to the order’s exception allowing specified attorneys to retain archival case files. The court retains jurisdiction to enforce the order and impose contempt sanctions for willful violations.

Judge Jennifer H. Rearden entered the protective order on June 12, 2023, after the parties stipulated and agreed to its terms.