Bematech Holdings LLC v. TOTVS Large Enterprise Tecnologia S.A.

Background

Bematech Holdings LLC sued TOTVS Large Enterprise Tecnologia S.A., formerly known as Bematech S.A., and TOTVS S.A. TOTVS Large Enterprise Tecnologia S.A. and TOTVS S.A. also asserted third-party claims against Bematech International Corp. The parties submitted a stipulated confidentiality and protective order governing documents, electronically stored information, deposition testimony, discovery responses, and other materials exchanged in the case.

Protective-order terms

The order allows a party producing information to designate material as “Confidential” if it contains or reflects trade secrets or proprietary information, is subject to nondisclosure obligations, or is otherwise believed in good faith to deserve protection under applicable federal law. Confidential material may be used only for this litigation, subject to an exception for a party’s use of its own material.

The order limits disclosure to specified recipients, including the parties and their counsel, certain employees and advisers, retained experts and consultants who sign an agreement to follow the order, court personnel, mediators or arbitrators, certain witnesses, and litigation-support personnel. Disclosure to other people requires written party consent or a court order.

The order establishes a process for objecting to a confidentiality designation. The designating party must respond within 14 days, after which the parties must confer. If they cannot resolve the dispute, the party supporting the designation must present it to the court. The order also provides procedures for correcting inadvertent designations and responding to unauthorized disclosures.

Privileged information and end of the case

Under the order’s privilege-clawback provisions, an inadvertent production of attorney-client privileged, work-product, or other protected material does not waive the protection. After receiving a clawback notice, the receiving party must return, destroy, or delete the identified material and related copies, excerpts, or summaries. A party may challenge the privilege claim, but the producing party must preserve the disputed material while the issue is resolved. Unresolved privilege disputes may be submitted to the court for review under seal.

Within 30 days after final disposition of the action, including any appeal, confidential material generally must be returned or destroyed. Outside counsel may retain one copy of specified work product containing or attaching confidential material. The order states that the court retains jurisdiction to enforce it after the case ends.

Court’s action and limits

The court entered the stipulated protective order and stated that it binds the parties to treat materials classified under the order as confidential. The court expressly stated that it had not reviewed the documents and therefore made no finding that any document was confidential. It also rejected any interpretation of the order that would allow the parties to file documents under seal without obtaining a prior court order. The judge’s name is not clearly legible in the provided text, so this summary identifies the decision-maker as the court.