Smith v. Faircom, LLC

Background

The parties submitted a stipulated protective order for the pretrial phase of the action. The court found good cause to issue an appropriately tailored confidentiality order. The order applies to the parties, their representatives, agents, experts, consultants, third parties providing discovery, and other persons with actual or constructive notice of the order.

Confidential information

The order permits a producing person to designate as confidential limited portions of discovery material, including nonpublic financial information; information about ownership or control of a nonpublic company; nonpublic business or marketing plans and proprietary business information; trade secrets and sensitive business information; personal or intimate information, including medical and personnel records; information that applicable law requires to be treated confidentially; and other categories the court gives confidential status.

A person receiving material designated as confidential generally may not disclose it except as the order permits. Permitted recipients include the parties; counsel and their litigation staff; certain people identified on documents; potential witnesses who sign a nondisclosure agreement; experts and other people providing specialized advice who sign such an agreement; deposition transcription services; litigation vendors and service providers; mediators or arbitrators; and the court and its support personnel. Counsel must provide the order to certain recipients and retain their signed nondisclosure agreements.

Use, filing, and challenges

Recipients may use confidential discovery material only to prosecute or defend this action and related appeals, not for business, commercial, competitive, or other litigation purposes. Confidential material filed with the court, and filings that disclose it, must be handled under the court’s sealed-record procedures, with a publicly filed redacted copy. The order also requires the parties to minimize sealing.

A party may object to a confidentiality designation or request stricter limits, such as an attorneys’-eyes-only designation in extraordinary circumstances. If the parties cannot promptly resolve the issue, affected counsel must request a telephone conference with the court. People with access to confidential material must take precautions against unauthorized or accidental disclosure.

Privilege and other protections

The order provides that an accidental disclosure of attorney-client privileged or attorney-work-product material does not waive the protection. The receiving party must return or destroy the material within five business days after learning of the disclosure and provide counsel’s certification. The producing party must then provide a privilege log, while the receiving party may ask the court to compel production. The producing party retains the burden of establishing privilege or other protection, and a party may request review of the material by the court in private.

The order does not waive objections to discovery, privileges, or other protections, and it does not decide whether evidence will be admissible at trial. A confidentiality designation also does not itself establish that the information is confidential under applicable law or other agreements or policies. The order permits production in response to a lawful subpoena or other compulsory process, subject to notice requirements.

Duration and court’s clarification

The protective order survives the end of the litigation. Within 30 days after final disposition, confidential discovery material and copies must be returned or destroyed unless the producing person permits destruction instead; attorneys specifically retained for the action may keep archival copies subject to the order. The court retains jurisdiction as needed to enforce the order or impose contempt sanctions.

Judge Furman separately stated that the court had not reviewed the documents covered by the stipulation and therefore made no finding that they were confidential. Any such determination would be made document by document under the court’s rules and the presumption favoring public access to judicial documents. He also stated that the order did not authorize filing documents under seal without a prior court order.