Busch v. Airbus S.A.S.

Background

The parties, through their attorneys, agreed that discovery would involve nonpublic and confidential documents or information. They jointly requested a protective order under Federal Rule of Civil Procedure 26(c), which permits a court to limit disclosure of discovery materials for good cause. The court found good cause and entered the order for the pretrial phase of the case.

The opinion does not decide the underlying claims or defenses. It also states that the order does not provide automatic protection for every discovery disclosure, create a right to file material under seal, waive objections or privileges, or decide whether any document or testimony is relevant or admissible.

Confidentiality Designations

A producing person may designate only material whose disclosure is restricted by law or would harm the producing person’s or a third party’s business, commercial, financial, or personal interests. Examples include previously undisclosed financial information; information about ownership or control of a nonpublic company; proprietary or competitively sensitive technical, marketing, financial, sales, or business information; private personal information; information received from third parties in confidence; and information believed in good faith to qualify for protection under Rule 26(c).

The order separately permits a “Highly Confidential” designation for material alleged to contain trade secrets, highly confidential research or development information, sensitive commercial information, or sensitive personal information or data covered by the European Union’s General Data Protection Regulation. Designations generally must be placed on the protected material, and a redacted version must be produced for future public use when practical. Deposition testimony may be designated during the deposition or during a specified designation period after the deposition.

A party that objects to a designation may give written notice before trial stating the specific grounds. The designating party must respond within 14 days, and unresolved disputes may be presented to the court under the judge’s individual rules. The material remains protected while the dispute is pending.

Who May Receive and Use Protected Material

The order permits disclosure to the parties, their insurers and insurance counsel, attorneys and their assigned staff, potential witnesses, experts, litigation-support vendors, mediators or arbitrators, certain people identified on a document, deposition personnel, and the court. Many of these recipients must first receive the order and sign a nondisclosure agreement. Counsel must retain those agreements and produce them in specified circumstances. The order does not require disclosure of the identity of consulting or non-testifying experts.

Recipients may use protected material only to prosecute or defend this action and any 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 rules.

Subpoenas, Court Filings, and Personal Information

The order provides procedures for responding to subpoenas and other compulsory demands for protected material. The receiving party must promptly notify the producing party and allow time for the producing party to seek protection from the court, unless disclosure is otherwise required by law or court order. The order also addresses requests involving French entities and permits disclosures to French authorities required by the French Blocking Statute, while stating that those procedures may not delay compliance with the Federal Rules of Civil Procedure or court orders.

A party seeking to file another person’s protected material must first obtain permission for public filing or redacted filing, or seek leave of court to file it under seal. The parties must publicly file redacted copies and separately file unredacted copies under seal when required. The court retains discretion over whether to keep material confidential and warns that material introduced at trial is unlikely to remain sealed. Personally identifying information and data covered by privacy laws must be stored and transmitted securely, and a receiving person must promptly report a data breach to the producing person.

Privilege and End of the Case

An inadvertent disclosure of material protected by attorney-client privilege or work-product protection does not waive the protection under the order. After a privilege claim, the receiving party generally must return or destroy the material within five business days and provide a certification. The producing party must then provide a privilege log, and the receiving party may ask the court to compel production without relying on the inadvertent disclosure as a ground.

The protective order continues after the litigation ends. Within 30 days after final disposition, including appeals, protected discovery material must be returned or destroyed, with a written certification. Attorneys specifically retained for this action may keep archival copies of specified case materials, but those copies remain subject to the order. The court retains jurisdiction to enforce the order and impose contempt sanctions for willful violations.

Ruling

Judge Jennifer H. Rearden entered the parties’ agreed protective order on June 12, 2023. The order governs the handling, disclosure, use, filing, and eventual return or destruction of confidential discovery materials; it does not resolve the merits of the case.