BaseCap Analytics Inc. v. Amenn

What the order does

The court entered a protective order for confidential information that the parties may exchange in the action. It covers documents, testimony, deposition and hearing transcripts, exhibits, discovery responses, and data obtained through forensic examinations ordered by the court. The order specifically treats data extracted from Robert Amenn’s laptop or other devices, media, or accounts as produced by Amenn and received by BaseCap Analytics Inc.

Confidentiality levels

The order establishes two designations:

* Highly Confidential: This may include nonpublic know-how, proprietary, financial, marketing, commercial, customer, pricing, business-planning, security, personal, employment, medical, tax, and similar sensitive information that the designating party in good faith believes is confidential. * Highly Confidential - Source Code: This covers Highly Confidential information that consists of or describes computer source code, algorithms, software structure, formulas, specifications, comments, or revision histories. All source code found on or in Amenn’s devices or accounts during a forensic examination is assigned this designation.

Who may access the information

Highly Confidential information may be accessed by specified people, including Archer Hall; the parties under the court’s forensic-search protocol; appearing outside counsel and their staff; litigation contractors and consultants who sign the required acknowledgment; certain insurers; the court and its personnel; court reporters and deposition stenographers; retained experts who sign the acknowledgment; certain witnesses involved with the information; and others approved in writing by the parties or designated by the court.

Highly Confidential - Source Code information has narrower access rules. BaseCap may access source code that Archer Hall confirms is BaseCap’s or its clients’ source code. Amenn may access source code that Archer Hall confirms is not BaseCap’s or its clients’ source code, subject to the forensic-search protocol. Appearing counsel, specified litigation contractors, up to two identified experts per retaining party, the court, and certain witnesses may also access it under the conditions stated in the order. Some witnesses may view source code only while testifying and may not retain copies.

Objections to disclosure

Before sharing protected information with certain experts, consultants, or proposed deposition witnesses, the receiving party must send the producing party a signed acknowledgment and, for proposed experts or consultants, the person’s résumé. The producing party has five business days to object. If there is an objection, the information may not be disclosed until the court resolves the dispute.

Handling, sealing, and destruction

Protected information and material derived from it may not be disclosed except as the order permits. The order also applies to protected information produced by nonparties. If a receiving party receives a subpoena or other legal demand for protected material in another matter, it must promptly notify the producing party and may not produce the material over an objection without a direct court order.

Within 30 calendar days after the action’s final disposition, receiving parties generally must destroy protected information, including copies, extracts, and summaries, and provide an oath-based declaration confirming destruction. The order does not require BaseCap to destroy its own information or its clients’ information retrieved during a forensic examination. The obligations continue after the case ends, and the court retains jurisdiction over disputes concerning the protected information or the order.

A party filing documents under seal must simultaneously file a letter brief and supporting declaration providing a particularized justification. The court retains discretion over whether to keep designated discovery confidential when it is submitted in connection with a motion or other proceeding. The order states that the court is unlikely to seal material introduced as evidence at trial, even if it was previously sealed or designated confidential.