Dow Jones & Company, Inc. v. Juwai Ltd.

Background

Dow Jones & Company, Inc. and Juwai Ltd. stipulated to a proposed protective order for information exchanged during discovery. The order states that discovery requests, subpoenas, and related proceedings may seek confidential commercial information or trade secrets. The court found good cause and ordered that the protective-order procedures govern the designation and protection of the materials.

Protection levels and permitted use

The order establishes two categories of protected material:

- “Confidential” material may include nonpublic commercial, financial, or business-strategy information; trade secrets and intellectual property; private personal information; and information subject to a confidentiality obligation to a third party. - “Confidential—Counsel Eyes Only” material may include particularly sensitive technical, competitive, financial, customer, product, technology, forecasting, and strategy information.

Protected material may be used only for this case unless the court orders otherwise. Confidential material may be disclosed to specified people, including the parties’ inside and outside lawyers, certain employees, experts and consultants who sign an agreement, court personnel, agreed mediators, deposition personnel, litigation-support vendors who sign an agreement, and people shown to have authored or previously received the material. The parties may modify the list of permitted recipients by written agreement of outside counsel.

Counsel-eyes-only material may be disclosed to outside counsel, experts and consultants under the stated conditions, certain deposition and court-related personnel, qualifying vendors and other specified recipients, and three named Dow Jones inside lawyers: Jason Conti, Craig Linder, and Michael Adelman.

Designations and challenges

The parties and non-parties may label materials “Confidential” or “Confidential—Counsel Eyes Only” using specified markings. Deposition, hearing, and trial testimony may be designated during the proceeding or after the transcript is received. A designating party may correct a missed designation later by written notice and may withdraw a designation by written notification. Information already public, already known to the receiving party, or obtained from a third party without violating a confidentiality duty is not protected under the order.

A party challenging a designation must give written notice identifying the disputed material and then meet and confer. If the dispute remains unresolved after 14 calendar days, the objecting party may move to change the designation. The designating party bears the burden of showing that the designation is proper, and the material remains subject to the designation while the court considers the dispute.

Privilege, court filings, and compelled disclosure

The order provides that producing attorney-client privileged, work-product, or otherwise protected information does not waive the protection. If a producing party later claims that information is privileged, the receiving party generally must return or destroy the information and related copies, notes, quotations, or summaries within 10 calendar days. A receiving party may dispute the privilege claim, including by asking the court to review the material privately, but the dispute does not suspend the return-or-destruction obligations stated in the order.

Protected materials filed in court must follow the court’s electronic procedures for sealed filings. The order separately states that no document may be filed under seal without a further court order addressing the specific material. A sealing request must include supporting affidavits and legal argument addressing the governing standards, including the standard discussed in Lugosch v. Pyramid Co. of Onondaga. The order also sets advance-notice procedures when one party intends to use another party’s confidential information in court.

If protected material is sought through a subpoena or other compulsory legal process, the receiving party must promptly notify the designating party and provide a copy of the request. The designating party may challenge the request, and the receiving party generally may not produce the material while that challenge is pending unless a court orders production or the designating party consents. The designating party bears the burden and expense of seeking protection in the other proceeding. The order does not prevent disclosures required by applicable law.

Storage, destruction, and effect of the order

The parties and their outside counsel must take reasonable precautions against unauthorized or accidental disclosure. Counsel must promptly notify the designating party of an improper disclosure and no later than three business days after discovering it. Within 60 days after the case ends, including any appeals, receiving parties must destroy protected materials and certify compliance, subject to stated exceptions allowing outside counsel to retain specified litigation and work-product files. Secure disaster-recovery backups need not be deleted or destroyed.

The order remains effective after the case ends unless the court cancels or changes it. It also states that a confidentiality designation is not an admission that the material is actually entitled to confidential treatment and does not prevent the parties or others from raising objections or seeking additional protection.

Ruling

Judge P. Kevin Castel ordered the stipulated protective order on October 19, 2023. The order governs discovery confidentiality and related handling procedures; it does not decide whether either party is correct on the underlying claims.