Potapova v. Toyota Motor Credit Corporation

Background

The parties, through counsel, jointly requested a protective order under Federal Rule of Civil Procedure 26(c). They represented that discovery would involve confidential documents or information whose public disclosure could harm the producing person or a third party owed a duty of confidentiality. The court found good cause for an appropriately tailored order governing the pretrial phase of the case.

Terms of the Protective Order

The order applies to the parties, their representatives, agents, experts, consultants, third parties providing discovery, and other people with actual or constructive notice of the order. A person who receives discovery material designated “Confidential” generally may not disclose it except as the order permits.

A producing person may designate only material whose disclosure is restricted by law or would harm business, commercial, financial, or personal interests. Examples include previously undisclosed financial information, information about ownership or control of a nonpublic company, business or marketing plans, and personal or intimate information. The order provides procedures for marking documents, designating native-format files, redacting confidential portions, and designating deposition testimony. A complete deposition transcript is treated as confidential for 21 days after the deposition unless specific portions are designated sooner.

The order permits disclosure to specified recipients, including the parties and their insurers, counsel and litigation-support personnel, mediators or arbitrators, certain people identified on documents, potential witnesses, experts, and the court. Mediators, arbitrators, witnesses, and experts must first receive the order and sign a nondisclosure agreement. A party may object to a confidentiality designation, and unresolved disputes are to be brought to the court under its individual practices.

The order also addresses discovery material subject to a third party’s confidentiality obligations, lawful subpoenas and other compulsory process, and personal identifying information. Confidential material may be used only for prosecuting or defending this case and related appeals, not for business, commercial, or competitive purposes. People with access must take precautions against unauthorized or accidental disclosure. After final disposition, confidential material and copies must be returned or destroyed within 30 days, unless the producing person permits otherwise. Willful violations may lead to contempt punishment, and the court retains jurisdiction to enforce the order and impose contempt sanctions.

Sealing and the Court’s Ruling

The order requires anyone seeking to file redacted material or material under seal to follow the court’s procedures and first seek permission. It states that a confidentiality designation does not create a right to seal documents and that the court retains discretion over confidential treatment, subject to the presumption of public access to judicial documents. It further warns that the court is unlikely to seal material introduced at trial or supporting or opposing a summary-judgment motion.

Judge Jesse M. Furman ordered the stipulated protective order on July 10, 2023. The court expressly stated that it had not reviewed the referenced documents and therefore made no finding that they were confidential. Any such finding would occur, if necessary, through a document-by-document review under the court’s procedures. The court also stated that it was not approving any provision that purported to authorize filing documents under seal without a prior court order.