Jack Russell Music Ltd. v. 21st Hapilos Digital Distribution, Inc.

Nature of the order

The court entered a stipulated confidentiality and protective order under Federal Rule of Civil Procedure 26(c). The order applies to information and documents exchanged by Jack Russell Music Ltd., 21st Hapilos Digital Distribution, Inc., Hapilos Publishing LLC, and NW Royalty Consulting LLC during the pretrial phase of the action. The parties had agreed to the terms, and the court found good cause for issuing an appropriately tailored order.

Confidential and attorneys’-eyes-only information

Counsel may designate documents or other information as “Confidential Information” when counsel determines in good faith that the designation is needed to protect proprietary information, trade secrets, or other sensitive nonpublic information. Counsel may designate certain material “Attorneys’ Eyes Only,” or “AEO,” before production if it contains a nonparty’s sensitive address or telephone number, sensitive financial or confidential business terms, or other material that the parties agree in writing—or the court orders—may receive that designation.

When a document contains AEO material, the producing party must provide both a version with the AEO portions redacted and an unredacted AEO version, in a way that makes clear that the two versions correspond.

Use and disclosure restrictions

Designated information may be used only in connection with this action. The order permits disclosure to specified categories of recipients, including the parties and their employees, directors, and officers; the parties’ counsel and litigation staff; outside counsel’s consultants and experts when necessary; and the court, including a mediator or another person who has access to the information because of a court-related position. AEO information generally may not be disclosed to in-house counsel or employees assisting in-house counsel.

Before disclosing or displaying designated information, counsel must inform the recipient that the information is confidential and that the court has prohibited its use for purposes outside this litigation and its disclosure to other people.

Challenges, privilege, and sealing

A party challenging a confidentiality designation, redaction, or AEO designation must first make a good-faith effort to resolve the dispute. If the dispute remains unresolved, the challenging party may ask the court to decide it. The order does not establish that designated information is relevant or admissible, and each party retains the right to object to its use or admissibility.

The order also provides that producing privileged or work-product-protected material, including electronically stored information, does not waive the privilege or protection in this case or another federal or state proceeding. Confidentiality designations do not create a presumption that information may be filed under seal. The parties must follow the court’s procedures for redactions and sealed filings that require court approval.

End of the litigation and court’s limitation

At the end of the litigation, designated information and copies generally must be returned to the producing party or destroyed within 30 days after entry of a final judgment that is no longer subject to appeal. Counsel may retain working files if those files remain protected under the order. The order does not prevent disclosure when required by law or a valid subpoena.

The court stated that, although the stipulation binds the parties to treat properly classified documents as confidential, the court had not reviewed the documents and therefore made no finding that any document was actually confidential. Any such finding would be made, if at all, through document-by-document review under the court’s rules and the presumption of public access to judicial documents. The court also did not approve any provision that would allow the parties to file documents under seal without a prior court order. Judge the court ordered the stipulation on March 5, 2024.