Skanska USA Building Inc. v. Regeneron Pharmaceuticals Inc.

Nature of the Order

The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c) to protect nonpublic and competitively sensitive information that might be disclosed during discovery. The court found good cause for an appropriately tailored order governing the pretrial phase and ordered the parties and other covered persons to comply with it, subject to possible contempt sanctions.

Confidential Information

The order defines “Discovery Material” as information produced or disclosed during discovery. A producing party may designate material as “Confidential” only when it reasonably and in good faith believes the material includes previously undisclosed financial information; information about ownership or control of a nonpublic company; business, product-development, or marketing plans; personal or intimate information about an individual; or another category that the court later gives confidential status.

The order establishes procedures for marking documents and designating deposition testimony or exhibits. A producing party may also correct an earlier failure to designate information before trial by notifying prior recipients in writing. The order does not waive objections to discovery, privileges or other protections, or arguments about whether evidence is admissible at trial.

Disclosure and Use Restrictions

Confidential material may be disclosed only to listed recipients, including the parties and certain insurers; counsel and their assigned staff; outside vendors; mediators or arbitrators; people identified as authors or recipients of documents; potential witnesses; experts and other specialized advisers; deposition stenographers; and the court and its personnel. Witnesses, experts, advisers, mediators, and arbitrators generally must first receive the order and sign the required nondisclosure agreement. Recipients may use confidential material only to prosecute or defend this action and related appeals, not for business, commercial, competitive, or unrelated litigation purposes.

The order also addresses compelled disclosure, requiring notice to the producing party when disclosure is sought through a subpoena or other compulsory process, when legally permitted. Anyone with access must take reasonable precautions against unauthorized or accidental disclosure.

Privileged Material and Later Handling

If privileged or attorney-work-product material is inadvertently disclosed, the disclosure does not waive the protection. The receiving party must return or destroy the material within five business days after notice and provide counsel’s certification. The producing party must then provide a privilege log, while the receiving party may ask the court to order production. The producing party retains the burden of establishing that the material is privileged or protected.

Within 60 days after the final disposition of the action, including appeals, recipients must return or, with the producing party’s permission, destroy confidential material and certify that they kept no copies or other reproductions. Counsel specifically retained for the case may keep archival copies of specified case materials, but those copies remain subject to the order. The order survives the end of the litigation, and the court retains jurisdiction to enforce it or impose contempt sanctions.

Sealing and Confidentiality Disputes

A party filing material under seal must simultaneously submit a letter brief and supporting declaration providing a particularized justification. The court retains discretion over whether to keep designated material confidential when it is submitted in connection with a motion or other proceeding. The order warns that material introduced at trial is unlikely to remain sealed merely because it was previously designated confidential. Parties may object to confidentiality designations or request additional limits, such as attorneys’-eyes-only treatment, and must bring unresolved disputes to the court under its individual practices.

Disposition and Effect

The court issued the stipulated confidentiality agreement and protective order. This was a procedural discovery ruling, not a decision on the merits of Skanska USA Building Inc.’s claims against Regeneron Pharmaceuticals, Inc.