Ogilvie Brands, Inc. v. Love Health, Inc.

Nature of the Order

The parties, through counsel, stipulated to a protective order under Federal Rule of Civil Procedure 26(c). The court found good cause to enter an appropriately tailored confidentiality order for the pretrial discovery phase because discovery would involve confidential documents or information whose public disclosure could cause harm to a producing person or a third party to whom a duty of confidentiality was owed.

Confidentiality Designations

The order permits a producing person to designate only information whose disclosure is restricted by law or would harm business, commercial, financial, or personal interests. Listed categories include previously undisclosed financial information; information about ownership or control of a nonpublic company; business plans, product-development information, trade secrets, sensitive technical information, marketing plans, and other proprietary information; and personal or intimate information about an individual.

A party or third party may also designate material as “Highly Confidential—Attorneys’ Eyes Only” when it has a good-faith belief that the material contains highly sensitive business or personal information whose disclosure is highly likely to cause significant harm. The parties acknowledged that this designation should be used sparingly and only in extraordinary circumstances.

The order sets procedures for marking documents and producing redacted copies. Deposition testimony may be designated during the deposition or within 30 days afterward by identifying specific pages, lines, or exhibits. A producing person may also correct an earlier failure to designate material before trial by notifying prior recipients in writing.

Who May Receive Protected Material

Confidential material may be disclosed to specified recipients, including the parties, insurers, counsel, litigation-support vendors, mediators or arbitrators, certain document recipients, potential witnesses, experts and consultants, deposition stenographers, and the court and its personnel. Several categories must first receive the order and sign a nondisclosure agreement.

Attorneys’-eyes-only material is subject to narrower limits. It may generally be disclosed to outside counsel for the receiving party, specified litigation-support vendors, mediators or arbitrators, certain document recipients, experts and consultants, deposition stenographers, and the court and its personnel, subject to the order’s conditions.

Protected material may be used only to prosecute or defend this action and any appeals. It may not be used 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 rather than through discovery.

Challenges, Court Filings, and Privilege

A party may object to a confidentiality designation before trial by giving written notice stating the grounds. If the parties cannot promptly resolve the dispute, counsel must bring it to the court under the applicable individual rules.

The order does not create an entitlement to file confidential material under seal. A party seeking to file documents under seal must submit a letter-motion explaining the basis for sealing and must publicly file a redacted version while filing the unredacted version under seal as required. The court retains discretion over confidential treatment and states that it is unlikely to seal material introduced as evidence at trial.

If a party inadvertently discloses material subject to attorney-client privilege or attorney work-product protection, the disclosure does not waive those protections under the order. After a claim of inadvertent disclosure, the receiving party must return or destroy the material within five business days and certify that it has done so. The producing party must then provide a privilege log, while the receiving party may ask the court to compel production. The producing party retains the burden of establishing that the material is privileged or protected.

End of the Case and Enforcement

The order survives termination of the litigation. Within 30 days after final disposition, recipients must return or, with the producing person’s permission, destroy designated confidential material and certify that they have retained no copies or other reproductions. Counsel may keep archival copies of specified case materials, but those copies remain subject to the order.

The court ordered that willful violations could result in contempt of court and retained jurisdiction as necessary to enforce the order or impose contempt sanctions. Judge Rearden’s order addressed discovery confidentiality and related procedures; it did not resolve the merits of the parties’ underlying dispute.