Wolf v. Dollar General Corporation

Nature of the Order

The court entered a stipulated confidentiality agreement and protective order under Federal Rule of Civil Procedure 26(c). The parties, through counsel, requested protection for nonpublic and competitively sensitive information that might be disclosed during discovery. The court found good cause for an appropriately tailored order governing the pretrial phase of the case.

Information Covered

The order defines “Discovery Material” as information of any kind produced or disclosed during discovery. A producing party may designate material as “Confidential” only when it reasonably and in good faith believes the material includes:

- Previously undisclosed financial information, such as profitability reports or estimates, percentage fees, design fees, royalty rates, minimum guarantee payments, sales reports, or sales margins; - Previously undisclosed information about ownership or control of a nonpublic company; - Previously undisclosed business plans, product-development information, or marketing plans; - Information of a personal or intimate nature about an individual; or - Another category that the court later gives confidential status.

The order sets marking procedures for documents and other discovery material. Deposition testimony may be designated during the deposition or within 30 days after the deposition ends. During that 30-day period, the entire deposition transcript is treated as confidential. A producing party may also correct a prior failure to designate material by giving written notice to earlier recipients.

Limits on Disclosure and Use

Confidential material may be disclosed only to listed recipients, including the parties and their insurers, counsel and litigation support staff, outside vendors, mediators or arbitrators, certain people identified on documents, stenographers, the court, and certain witnesses and experts. Before confidential material is disclosed to a mediator, arbitrator, witness, or expert under the specified provisions, that person must receive the order and sign the required 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 unrelated litigation purposes. The order also requires precautions against unauthorized or accidental disclosure, including encryption for electronic materials shipped to authorized recipients and secure tracked shipping for paper materials.

Court Filings and Challenges

A party filing material under seal must publicly file a redacted version and file the unredacted version under seal. The party must also submit a letter brief and supporting declaration explaining, on a particularized basis, why continued sealing is justified. The order states that the court retains discretion over whether to keep designated material confidential when it is submitted in connection with a motion or other proceeding, and that material introduced at trial is unlikely to remain sealed.

A party may object to a confidentiality designation before trial by giving written notice stating the grounds for the objection. A party may also request additional disclosure limits, such as “attorneys’ eyes only,” in extraordinary circumstances. If the parties cannot promptly resolve either dispute, counsel must present it to the court under the court’s individual practices.

Privilege and Return of Materials

The order provides that an inadvertent disclosure of information protected by attorney-client privilege or attorney work-product protection does not waive that protection. After receiving notice of such a claim, the receiving party must return or destroy the information within five business days and provide counsel’s certification. The producing party must then provide a privilege log within five business days after receiving notice that the information was returned or destroyed. The receiving party may ask the court to compel production, and the producing party retains the burden of establishing privilege or protection.

Within 60 days after final disposition of the action, including appeals, recipients must return all confidential discovery material or destroy it if the producing party permits destruction. They must certify that they retained no copies or reproductions, although specifically retained attorneys may keep archival copies of listed litigation materials subject to the order.

Ruling and Effect

Judge Philip M. Halpern ordered all people covered by the order to comply with its terms, subject to contempt. The order continues after the litigation ends, and the court retains jurisdiction over people subject to it to enforce the order and impose contempt sanctions. The order does not waive objections to discovery, waive privilege or other protection, or decide whether evidence is admissible at trial.