Koh v. Koo

Background

Sean Koh and Koherent, Inc. sued Bonwoong (Brian) Koo. The parties submitted a confidentiality stipulation and proposed protective order governing documents and information exchanged during the pretrial phase. The court stated that good cause existed for an appropriately limited order under Rule 26(c) of the Federal Rules of Civil Procedure.

Terms of the Order

The order permits counsel to designate information as confidential when, in good faith, the designation is needed to protect proprietary, trade-secret, or other sensitive nonpublic information. Recipients may use designated information only for this action. Disclosure is limited to specified people, including the requesting party and counsel, necessary litigation staff, consultants and experts assisting with the case, and the court or people accessing the information through their court-related positions.

Before disclosing confidential information, counsel must tell the recipient about its confidential nature and the order’s restrictions and obtain the recipient’s signed agreement to follow the order. A party’s failure to designate material as confidential at the time of disclosure does not waive the right to designate it later. The order also requires secure handling of personally identifying information exchanged in discovery.

Under Federal Rule of Evidence 502, inadvertent or other production of attorney-client privileged or work-product-protected material does not waive the protection in this case or another federal or state proceeding. The order states that confidential discovery material is not automatically eligible for filing under seal. The parties must follow the court’s procedures for seeking a sealing order. At the end of the litigation, confidential information generally must be returned or destroyed within 30 days after final judgment is no longer subject to further appeal, although counsel may retain protected working files. Disclosure remains permitted when required by law or a valid subpoena.

Court’s Action

Judge Jesse Furman ordered the stipulation. The court expressly stated that it had not reviewed the documents and therefore made no finding that they were confidential. Any such determination would occur, if necessary, through the court’s document-review procedures and subject to the presumption of public access to judicial documents. The court also declined to order any provision that purported to authorize filing documents under seal without a prior court order.