TF Entertainment Corp. v. Safavieh, Inc.

Order

The court entered a stipulated confidentiality agreement and protective order under Federal Rule of Civil Procedure 26(c). The order applies to the parties, their corporate parents, successors and assigns, representatives, agents, experts, consultants, third parties producing discovery, and other people with actual or constructive notice of the order.

Confidential information

A producing party may designate as confidential only material that it reasonably and in good faith believes includes previously undisclosed information such as financial information, information about ownership or control of a nonpublic company, business plans, product-development or marketing information, or personal or intimate information. The court may later grant confidential status to other categories.

The order establishes procedures for marking confidential material and producing public versions with confidential information redacted. Deposition testimony is treated as confidential during the 30 days after a deposition, during which the producing party may identify specific pages and lines for continued confidential treatment. A producing party may also correct an earlier failure to designate material by notifying prior recipients in writing.

Permitted disclosures and use

Confidential discovery may be disclosed only to specified recipients, including the parties and their insurers, counsel and litigation support personnel, service providers, mediators or arbitrators, certain people identified on documents, witnesses counsel believes may testify, experts and other specialized advisers, deposition transcription personnel, and the court. Mediators, arbitrators, potential witnesses, experts, and specialized advisers must receive the order and sign the required nondisclosure agreement before receiving the material.

Recipients may use confidential discovery only for prosecuting or defending 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 protections, and it does not decide whether evidence is admissible at trial.

Court filings and challenges

A party filing confidential material under seal must publicly file a redacted version and file the unredacted version under seal, along with a letter brief and supporting declaration explaining on a particularized basis why continued sealing is justified. The court retains discretion over whether to keep confidential material sealed when it is submitted in connection with a motion or other proceeding. The order states that the court is unlikely to seal material introduced into evidence at trial.

A party may object to a confidentiality designation or request additional disclosure limits, such as attorney-eyes-only treatment, by written notice stating specific grounds. If the parties cannot promptly resolve the dispute, they must present it to the court under the court’s individual practices.

After the case and enforcement

Within 60 days after final disposition, including appeals, recipients must return or, with the producing party’s permission, destroy confidential material and certify that they have not retained copies or other reproductions. Counsel specifically retained for the action may keep archival copies of specified case materials, but those copies remain subject to the order. The order survives termination of the litigation, and the court retains jurisdiction to enforce its obligations and impose contempt sanctions.

Disposition

Judge Paul G. Gardephe found good cause for an appropriately tailored confidentiality order and ordered the parties and other covered persons to follow its terms. The opinion addresses discovery confidentiality and procedure, not the underlying merits of the lawsuit.