The Nielsen Company, LLC v. TVSquared LTD

Nature of the Order

The parties jointly stipulated to, and the court entered, a protective order governing confidential information produced or disclosed in discovery. A protective order sets rules for limiting the use and disclosure of sensitive litigation materials. This order does not resolve the underlying claims or defenses.

Protected Information

The order covers information designated as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL SOURCE CODE.” The categories include business, financial, commercial, technical, development, and source-code information that could harm a person’s competitive position or violate confidentiality obligations. The order also covers copies, summaries, compilations, testimony, conversations, and presentations that reveal protected material.

The protections do not cover information already public, information that later becomes public without violating the order, or information the receiving party already knew or lawfully obtained from a source without a confidentiality obligation.

Designation and Challenges

Producing parties must limit confidentiality designations to material that qualifies for protection and must use specified labels on documents, electronic files, tangible items, and testimony. Deposition or other proceeding testimony may be designated within 21 days after receipt of the final transcript. A party or non-party may challenge a designation at any time, ordinarily beginning with written notice and a direct discussion within seven days. If the dispute remains unresolved, it may be brought to the court within 14 days after that discussion. The designating party bears the burden of persuasion, and the challenged material remains protected while the dispute is pending.

Who May Receive the Material

Protected material may be used only for this litigation. Confidential material may be disclosed to specified recipients, including outside counsel, up to three identified in-house counsel, approved experts, the court and its personnel, court reporters, litigation-support vendors, certain witnesses, and people who already possessed or knew the information. Higher-level protected material generally may be disclosed only to outside counsel, approved experts, the court and its personnel, court reporters and vendors, certain witnesses, and people who already possessed or knew the information, subject to the order’s requirements.

People involved in competitive decision-making may not access material designated as highly confidential outside attorneys’ eyes only or highly confidential source code. The order also establishes procedures for notifying and objecting to disclosure of protected material to experts. A two-year prosecution bar applies to people who review or receive specified highly protected material. During that period, those people may not engage in defined patent-prosecution activities relating to the subject matter of the patents in suit.

Subpoenas, Non-Parties, and Unauthorized Disclosure

The order requires notice when protected material is subpoenaed or otherwise sought in another proceeding. It also provides procedures for protecting a non-party’s confidential information that is sought in this litigation. If protected material is disclosed without authorization, the receiving party must notify the designating party, try to retrieve unauthorized copies, inform the recipient of the order, and request the recipient’s agreement to be bound.

Privileged Material and Security

Inadvertent production of attorney-client privileged or attorney work-product material does not waive the protection in this action or another action under the order’s stated provisions. After notice, the receiving party generally must stop using the material and return, destroy, or delete it within five business days, and provide a certification of compliance.

The order requires reasonable physical, logical, and data-access controls. A receiving party that discovers a security breach must notify the producing party within 24 hours, investigate and address the breach at its expense, provide information about its scope, and take corrective action.

Filing Under Seal and Final Disposition

The order does not automatically permit protected material to be filed under seal. A party seeking to file such material publicly or under seal must follow the Southern District of New York’s Local Rules, electronic filing procedures, and any applicable court order. Within 60 days after final disposition, each receiving party generally must return or destroy protected material and certify compliance. Counsel may retain archival copies of specified case materials, but retained protected material remains subject to the order.

Ruling

United States Magistrate Judge Sarah Netburn entered the stipulated protective order on September 6, 2023. The text identifies Judge Vernon S. Broderick as the district judge and Sarah Netburn as the magistrate judge, but the order is signed as entered by Sarah Netburn.