Aerosols Danville Inc. v. Kik Custom Products Inc.

Background

Aerosols Danville Inc., doing business as Voyant Beauty, and Kik Custom Products Inc. submitted an agreed confidentiality stipulation and proposed protective order for materials exchanged during the pretrial phase of the case. The order states that Aerosols Danville is the plaintiff and counterclaim defendant, while Kik is the defendant and counterclaim plaintiff.

What the Order Requires

The court entered the protective order after finding good cause under Rule 26(c) of the Federal Rules of Civil Procedure. It permits a party, acting in good faith, to designate nonpublic sensitive information as “CONFIDENTIAL.” It also permits designation as “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” when information is proprietary, a trade secret, or particularly sensitive.

Protected information may be used only for this action. Confidential material may be disclosed to specified people, including the requesting party and counsel, necessary litigation employees, identified persons who previously received the information, consultants or experts assisting with the case, and the court. Highly confidential material has narrower access: it may be disclosed to outside counsel, necessary litigation employees, identified prior recipients, consultants or experts assisting with the case, and the court.

The order creates procedures for challenging a designation. A party must give written notice within 14 days after receiving the material and explain the challenge on a document-by-document basis. The designation remains in place while the dispute is unresolved, and counsel must try in good faith to resolve the dispute before seeking court review.

The order also requires protections for consultants and experts, establishes confidentiality procedures for deposition transcripts, and directs the parties to take reasonable steps to preserve confidentiality when protected material is used at a hearing or trial. It states that protected material may not be used as a basis to exclude evidence at trial or a public hearing.

Disclosure of a document without a confidentiality designation does not waive the right to designate it later. Personally identifying information exchanged in discovery must be stored securely and shared only with authorized individuals. The order also provides that inadvertent or otherwise unintentional production of privileged or work-product-protected material does not waive the protection in this case or another federal or state proceeding, to the extent permitted by Evidence Rule 502.

At the end of the litigation, protected information and copies generally must be returned or certified as destroyed no later than 30 days after entry of final judgment that is no longer subject to appeal, although counsel may retain protected working files. The order allows disclosure when required by law or a valid subpoena.

Court’s Limitation on Sealing

The court expressly stated that it had not reviewed the documents covered by the stipulation and made no finding that any particular document was confidential. The order does not create a presumption that designated materials may be filed under seal. Any party seeking to seal a filing must follow the court’s procedures and obtain a prior court order; the protective order does not itself authorize sealing.

Disposition

Judge Jesse Furman entered the stipulated confidentiality and protective order on February 12, 2024. The order governs the handling of discovery and related pretrial materials but does not resolve the parties’ underlying claims or defenses.