Altimeo Asset Management v. Qihoo 360 Technology Co. Ltd.

Background

The parties asked the court to issue a protective order under Federal Rule of Civil Procedure 26(c). A protective order sets rules for handling information exchanged during discovery. The parties agreed to the proposed terms, and the court found good cause for an appropriately limited order protecting nonpublic and competitively sensitive information.

The order identifies the parties as Altimeo Asset Management, ODS Capital LLC, Qihoo 360 Technology Co. Ltd., Hongyi Zhou, and Eric X. Chen. It states that Xiangdong Qi had not appeared in the action.

Confidential Information

A producing party may designate only material that it reasonably and in good faith believes falls within specified categories. These include nonpublic financial information; information about ownership or control of a nonpublic company; sensitive business plans, product-development information, marketing information, and business or legal strategy; personal or intimate information; information subject to data-protection, privacy, or other legal restrictions; and other categories later given confidential status by the court.

The producing party must clearly mark the protected material. Special procedures apply to deposition testimony, including temporary treatment of the entire transcript as confidential for 30 days after the deposition. Confidential designations also carry over to translations, and previously produced material may later be designated if the producing party gives written notice and provides replacement copies.

Limits on Disclosure and Use

People subject to the order may disclose confidential discovery material only to listed recipients. These include the parties and their insurers, counsel and assigned support staff, litigation vendors, mediators or arbitrators, people identified as recipients of a document, potential witnesses, experts and other specialized advisers, deposition stenographers, and the court. Mediators, potential witnesses, experts, and certain advisers must first receive the order and sign a nondisclosure agreement.

Recipients may use confidential discovery material only to prosecute or defend this action and related appeals. The order does not restrict a party’s use of its own documents or information. Anyone with access must take reasonable precautions against unauthorized or accidental disclosure.

Court Filings, Challenges, and End of Case

A party filing confidential discovery material or papers revealing it must publicly file a redacted version. A party seeking to file material under seal must follow the court’s separate filing procedures. The order warns that the court may unseal documents unless it can make the required specific findings that sealing is essential and narrowly tailored.

A party may object to a confidentiality designation before trial by giving written notice stating the specific grounds. If the parties cannot resolve the dispute, they must bring it to the court under the applicable individual practices. A party seeking additional disclosure limits must follow a similar process.

Within 90 days after final disposition of the action, including appeals, recipients generally must return or, with permission, destroy confidential material and certify that they retained no copies or reproductions. The order allows specified exceptions, including routine backup systems, materials required to be preserved by law, and archival copies retained by attorneys specifically retained for the action. The order continues after the litigation ends, and the court retains jurisdiction to enforce it and impose contempt sanctions.

Ruling

Judge Paul A. Engelmayer ordered the parties and other persons with notice of the order to follow the stipulated confidentiality and protective-order terms. The order was ancillary to discovery; it did not decide the confidentiality or admissibility of any particular material, waive objections or privileges, or resolve the merits of the underlying case.