Tianhai Lace USA, Inc. v. Zara USA, Inc.

Nature of the Order

This is a stipulated protective order concerning confidential or business-sensitive information. Counsel for all parties agreed to its terms. The order governs information produced, given, or filed during discovery and other proceedings in the case, including protected information produced before the order’s date.

Protected Information and Permitted Use

“Confidential Information” includes trade secrets; product designs; product and business plans; manufacturing processes; nonpublic business information; financial data; sales, costs, profits, and overhead information; vendor and customer identities; confidential research, development, and commercial information; testing and test results; and confidential, proprietary, or private personal information.

Protected information may be used only to prepare for and conduct this action, including appeals. It may not be used for business, competitive, governmental, research, development, or any other purpose. The order does not prevent a litigation attorney from giving litigation advice to a client based on the attorney’s review of designated information, but the attorney may not disclose protected contents or sources that the client is not otherwise authorized to receive.

Confidentiality Levels and Disclosure

A producing person may designate information as “Confidential” if it fits the order’s definition. Information considered especially sensitive may be designated “Highly Confidential — Attorneys’ Eyes Only,” including personnel records and nonpublic business or financial information such as customer or supplier lists, prices, sales, profits, and sales projections.

Confidential information may be disclosed to outside counsel, assisting in-house counsel and legal staff, approved party officers, directors, or employees, the court and court personnel, approved witnesses, and qualifying outside investigators, experts, or consultants. Certain recipients must sign a written agreement to follow the order. Highly Confidential — Attorneys’ Eyes Only information may generally be disclosed only to lawyers, the court and court personnel, approved witnesses, and qualifying outside investigators, experts, or consultants—not to the parties’ officers, directors, or employees under the ordinary disclosure provision.

The order includes limited exceptions for people who previously had access to the information, document authors and addressees, certain discussions with potential witnesses, and information that is public, lawfully obtained from a nonconfidential third party, already lawfully possessed, or independently developed.

Court Filings and Sealing

If protected information is used in a court proceeding, the parties must take steps to preserve its confidentiality unless the court orders otherwise. Materials subject to a confidentiality designation that are filed with the court must follow the Southern District of New York’s electronic-filing requirements for sealed materials. The parties acknowledge that sealing or redacting court filings must be narrowly tailored and consistent with the presumption of public access to judicial documents. A confidentiality agreement alone does not automatically justify sealing.

Challenges to Designations

A party objecting to a confidentiality designation must identify the challenged material and first try to resolve the dispute informally and in good faith. If the dispute is not resolved within ten business days, or if the producing party does not respond within that period, the objecting party may seek relief from the court. Until the court changes the designation, the material must continue to receive the ordered protection. The party asserting confidentiality bears the burden of establishing it.

End of Litigation and Continuing Obligations

Within 60 days after the litigation concludes, protected documents and transcripts, as well as summaries or other materials containing protected information, must generally be returned or destroyed. A party may retain a complete set of pleadings, deposition transcripts and exhibits, and trial transcripts and exhibits. The order continues to bind the parties after the case ends, and the court retains limited jurisdiction to enforce its obligations.

Expert Materials

Draft reports, notes, outlines, and other writings leading to a testifying expert’s final report are exempt from discovery. Communications and materials generated by the expert are also exempt unless they contain information the expert relied on, or relevant information the expert considered but did not rely on, in forming an opinion. Final reports and materials containing nonexempt information must be produced, with redactions allowed when materials contain both exempt and nonexempt information.