Thacker v. HSBC

Background

The parties, through counsel, jointly requested a protective order under Federal Rule of Civil Procedure 26(c). That rule allows a court to limit disclosure of discovery information for good cause. The parties sought protection for nonpublic and competitively sensitive information that might be disclosed during discovery.

Order

The court found good cause and issued the stipulated confidentiality agreement and protective order. The order applies to the parties and to other people with notice of it, including their officers, agents, employees, attorneys, and people acting with them.

A producing party may designate only portions of discovery material that it reasonably and in good faith believes contain specified confidential information. The listed categories include previously undisclosed financial information; information about ownership or control of a nonpublic company; business, product-development, or marketing plans; personal or intimate information; and other categories later given confidential status by the court.

People subject to the order generally may disclose designated confidential material only to specified recipients, including the parties and their insurers, lawyers and their staff, litigation vendors, mediators or arbitrators, certain people identified on a document, potential witnesses, experts or specialized advisers, deposition transcription providers, and the court. Some recipients must first receive the order and sign a nondisclosure agreement.

Filing, Challenges, and Use

The order requires a public redacted filing and a sealed unredacted filing when confidential discovery material is submitted to the court. A party seeking sealing must file an application and supporting declaration that justify sealing on a particularized basis. The order warns that the court may not seal material introduced at trial and states that the court retains discretion to decide whether any designated material should receive confidential treatment.

A party may object to a confidentiality designation before trial. If the parties cannot promptly resolve the dispute, counsel must bring it to the court under the court's individual practices. The order also provides a procedure for requesting additional disclosure limits, such as attorneys'-eyes-only treatment in extraordinary circumstances.

Confidential discovery material may be used only for prosecuting or defending this action and related appeals. It may still be produced in response to lawful compulsory process or a government requirement, subject to notice to the producing party when permitted. People with access must take precautions against unauthorized or accidental disclosure.

End of the Order

Within 60 days after the final disposition of the action, including appeals, recipients must return or, with the producing party's permission, destroy confidential discovery material and certify that they have not retained copies or other reproductions. Specifically retained attorneys may keep archival copies of specified case materials, but those copies remain subject to the order. The order continues after the litigation ends, and the court retains jurisdiction to enforce it and impose contempt sanctions.

Disposition

Judge Gregory H. Woods ordered the parties and other covered people to follow the stipulated protective order. The order addressed discovery confidentiality and did not resolve the underlying claims, rule on the admissibility of evidence, or make a final determination that any particular discovery material was confidential.