Elite Brands Inc. v. Sakar International, Inc.

Background

The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c). They represented that discovery would involve confidential documents or information whose public disclosure could harm a producing person or a third party to whom a duty of confidentiality is owed. The court found good cause for an appropriately tailored order governing the pretrial phase of the case.

Main requirements

The order covers the parties, their representatives and agents, experts and consultants, third parties providing discovery, and other interested persons with actual or constructive notice of the order. Protected discovery material may be designated either “Confidential” or “Attorneys’ Eyes Only” (AEO). A producing person may designate only the portion that needs protection. Examples include previously undisclosed financial information, ownership or control information concerning a nonpublic company, business and marketing plans, product-development information, personal or intimate information, and information whose disclosure would harm business, commercial, financial, or personal interests.

People who receive protected material generally may not disclose it except as the order permits. Confidential material may be shared with specified parties, insurers, counsel and their litigation staff, litigation vendors, mediators, arbitrators, certain witnesses, experts, stenographers, and the court. AEO material may be shared with a narrower group and may not be disclosed to the parties or insurers under the order’s disclosure provisions. Certain recipients must first receive the order, sign a nondisclosure agreement, and agree to be bound by it.

Protected material may be used only to prosecute or defend this case and related appeals. It may not be used for business, commercial, competitive, or other litigation purposes. Recipients must store it securely and take precautions against unauthorized or accidental disclosure. The order also requires prompt notice and remedial efforts if protected material is disclosed without authorization.

Designation and court filings

The producing person or counsel may designate documents and other discovery material by marking the protected portions. Deposition testimony may be designated on the record or within 30 days after the deposition. During that 30-day period, the entire deposition transcript is treated as AEO material. A producing person may correct an earlier failure to designate material before trial by notifying prior recipients in writing.

A confidentiality designation may be challenged before trial. If the parties cannot resolve the dispute, counsel must present it to the court under the court’s applicable individual rules. The order does not automatically permit filing protected material under seal. A party seeking to file under seal must follow the applicable court procedures, including filing a letter-motion explaining the basis for sealing. The court retains discretion over confidential treatment and warns that it is unlikely to seal material introduced as evidence at trial.

Privilege, personal information, and case ending

An inadvertent disclosure of material protected by attorney-client privilege or the work-product doctrine does not waive that protection under the order. After a claim of inadvertent disclosure, the receiving party must sequester the material, stop using it, and return or destroy copies within five business days, subject to procedures for a privilege log and a possible motion to compel production. The party asserting privilege retains the burden of establishing that the material is protected.

Personally identifying information must be kept secure and confidential. A recipient experiencing a data breach must immediately notify the producing person and cooperate in addressing it. The order does not waive objections to discovery, privileges, or protections, and it does not decide whether evidence is admissible at trial.

Within 30 days after final disposition of the case, protected discovery material and copies must be returned or destroyed, unless the producing person permits destruction or another arrangement stated in the order. Recipients must certify that they have not retained copies or other reproductions. Attorneys specifically retained for the case may keep archival copies of specified case materials, but those copies remain subject to the order. The order continues after the litigation ends, and willful violations may result in contempt punishment. Judge Jennifer H. Rearden signed the order on February 14, 2024.