U.S. Securities and Exchange Commission v. SAExploration Holdings, Inc.

Background

The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c) for the pretrial discovery phase of the case. They sought protection for nonpublic and competitively sensitive information that might be disclosed during discovery. The parties stipulated to the order’s terms, and the court found good cause to issue an appropriately tailored confidentiality order.

Protective Order

The order defines covered “Discovery Material” as information produced or disclosed during discovery. A producing party may designate only portions that it reasonably and in good faith believes contain specified confidential information, including previously undisclosed financial information, ownership or control information about a nonpublic company, business or marketing plans, product-development information, or personal or intimate information. The court may later grant confidential status to other categories.

Confidential material generally may be disclosed only to specified recipients, including the parties, their insurers and counsel, counsel and litigation-support personnel, service providers, mediators or arbitrators, certain document recipients, potential witnesses, experts, deposition stenographers, and the court. Before certain witnesses, experts, mediators, or arbitrators receive the material, they must read the order and sign a nondisclosure agreement.

Recipients may use confidential discovery material only to prosecute or defend this action and related appeals. They may not use it for business, commercial, competitive, or other litigation purposes. The order does not waive objections to discovery, privileges, or objections to admissibility at trial. It also does not restrict a party’s rights concerning its own documents or information.

Sealing and Disputes

A party filing confidential material under seal must publicly file a redacted version and file the unredacted version under seal. The order requires supporting submissions addressing the need for sealing and warns that the court may unseal material if the required specific findings are not established. The court retains discretion over whether to maintain confidentiality for material submitted in connection with motions or other proceedings and states that it is unlikely to seal material introduced as evidence at trial.

Parties may challenge confidentiality designations or request additional disclosure limits, such as attorneys’-eyes-only treatment, before trial. If the parties cannot promptly resolve such disputes, counsel must bring them to the court under the judge’s individual practices.

Duration and Disposition

Within 60 days after final disposition of the action, including appeals, recipients must return or, with the producing party’s permission, destroy confidential material and certify that they retained no copies or other reproductions. Counsel specifically retained for the action may keep archival copies of specified case files and work product, but those copies remain subject to the order. The order survives termination of the litigation, and the court retains jurisdiction to enforce it and impose contempt sanctions.

Ruling

Judge Paul G. Gardephe ordered the parties and other persons subject to the order to comply with its confidentiality requirements. The order governs discovery and document handling; the opinion does not decide the merits of the underlying dispute.