Presidio, Inc. v. Driven Acquisition, Inc.

Background

The parties requested a protective order under Federal Rule of Civil Procedure 26(c) because discovery would involve confidential documents and information. The parties, through counsel, agreed to the order’s terms. The court found good cause to issue a tailored confidentiality order for the pretrial phase of the case.

Protection Levels

The order covers “Discovery Material,” meaning information produced or disclosed during discovery. A person who receives material designated “Confidential” or “Attorneys’ Eyes Only” generally may not disclose it except as the order permits.

A producing person may designate material “Confidential” when public disclosure is restricted by law or would harm business, commercial, financial, or personal interests. Listed examples include previously undisclosed financial information, ownership or control information about a nonpublic company, business or marketing plans, and personal or intimate information.

“Attorneys’ Eyes Only” is reserved for information the producing person reasonably and in good faith considers highly confidential. Examples include current or future business strategies, sensitive technical or financial information, research and development information, trade secrets, nonpublic customer or consignor information, and certain proprietary software, systems, or processes.

Disclosure Limits

Confidential information may be disclosed to specified recipients, including the parties and their insurers, counsel and litigation support staff, approved vendors, mediators or arbitrators, certain document authors or recipients, potential witnesses, experts and advisers, stenographers, and the court. Many of these recipients must first sign a nondisclosure agreement.

Attorneys’ Eyes Only information may be disclosed to a narrower group, including counsel and assigned staff, approved vendors, mediators or arbitrators, certain people who lawfully received the document outside this lawsuit, potential witnesses, experts and advisers, stenographers, and the court. The order also allows disclosure to other people if the parties agree in writing or the court orders it.

Protected material may be used only to prosecute or defend this action and related appeals. It may not be used for business, commercial, competitive, or other litigation purposes. The order does not restrict a person’s use of that person’s own information or information obtained independently from the discovery process.

Challenges, Court Filings, and Privilege

A party may challenge a confidentiality designation before trial by giving written notice explaining the grounds. If the parties cannot resolve the dispute, they must bring it to the court under the applicable individual practice rule. The court may change an Attorneys’ Eyes Only designation to Confidential and may impose costs, including attorney fees, on the unsuccessful party.

The order does not automatically permit confidential material to be filed under seal. A party seeking to file such material under seal must first submit a letter-motion explaining the basis for sealing. Public redacted versions and sealed unredacted versions are required for confidential court submissions. The court retains discretion over whether to keep material confidential and warns that it is unlikely to seal material introduced as evidence at trial.

If privileged or work-product-protected information is accidentally disclosed, the disclosure does not by itself waive the protection. The receiving party must return or destroy the information within five business days after a claim of inadvertent disclosure and provide a certification. The disclosing party must then provide a privilege log, and the receiving party may ask the court to require production of the information. The disclosing party retains the burden of proving that the information is privileged or protected.

Other Requirements and Ruling

Recipients must protect personally identifying information, including Social Security numbers, financial account numbers, passwords, and information that could be used for identity theft. A recipient experiencing a data breach must immediately notify the producing person and cooperate in addressing the breach. The order also addresses subpoenas and other compulsory process, third-party confidentiality obligations, and continued protection after the litigation ends.

Within 30 days after final disposition, protected discovery material must be returned or destroyed unless the producing person permits destruction instead, and the recipient must certify that it retained no copies or summaries. Attorneys specifically retained for the case may keep archival copies of specified litigation materials, which remain subject to the order. Willful violations may lead to contempt sanctions, and the court retains jurisdiction to enforce the order.

Judge Robert W. Lehrburger entered the protective order after the parties’ stipulation and agreement. The order concerns discovery management and confidentiality; it does not resolve the merits of the dispute.