Nock v. Spring Energy RRH, LLC

Background

The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c) because discovery would involve confidential documents and information. The court found good cause for an appropriately limited order governing the pretrial phase of the case. The order applies to the parties, their representatives, agents, experts, consultants, third parties providing discovery, and other people with actual or constructive notice of it.

Confidential information

The order permits a producing person or party to designate only information whose disclosure is restricted by law or could 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, and marketing plans; and personal or intimate information. For consumers other than Robert Nock and the defendants’ employees, the order specifically includes contact information, residential gas or electricity consumption, and related financial or consumer-account information.

The producing person or party must identify protected material through markings, redactions, written notices, or procedures for electronic documents. Deposition transcripts are treated as confidential for 30 days after the deposition, during which time specific pages, lines, or exhibits may be designated.

Permitted disclosures and use

Confidential discovery material may be disclosed only to the categories listed in the order, including the parties and their insurers; counsel and litigation staff; litigation vendors; mediators or arbitrators; certain people identified on a document; potential witnesses; experts and other specialized advisers; deposition transcriptionists; and the court. Certain recipients must first receive the order and sign a nondisclosure agreement.

Recipients may use confidential 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 restrict a person’s use of that person’s own information or information obtained independently of discovery.

Challenges, sealing, and privileged material

A party may object to a confidentiality designation or request additional disclosure limits, such as attorneys’-eyes-only treatment in extraordinary circumstances. If the parties cannot resolve the issue, they must present it to the court under the court’s individual rules. The order also establishes notice procedures when discovery is subject to a third party’s confidentiality obligations.

The order does not create an entitlement to file confidential material under seal. A party seeking to file material under seal must first submit a letter-motion explaining the basis for sealing, and the court retains discretion over confidential treatment of material submitted in connection with motions or proceedings. Public redacted copies and sealed unredacted copies are required for confidential court submissions.

If privileged or work-product-protected information is inadvertently disclosed, the disclosure does not by itself waive the protection. The receiving party must return or destroy the material within five business days after a claim of inadvertent disclosure and provide counsel’s certification. The disclosing party must then provide a privilege log, while retaining the burden of establishing that the material is privileged or protected.

Disposition and continuing obligations

The court ordered the protective-order terms. The order survives the end of the litigation. After final disposition, recipients generally must return or destroy confidential discovery material within 30 days of the producing party’s demand and certify that they have not retained copies, subject to the order’s archival-copy exception for attorneys specifically retained in the action. Willful violations may result in contempt of court, and the court retained jurisdiction to enforce the order and impose contempt sanctions.

The opinion is a discovery and confidentiality order; it does not decide the underlying claims or defenses in Nock v. Spring Energy RRH, LLC.