Dixon v. Reid

Background

The court entered a protective order because the parties were exchanging, or expected to exchange, documents and information during discovery that might warrant confidential treatment. The order states that the parties had been unable to agree on all material terms, so the court adopted an order broadly consistent with the terms on which they could agree. The parties represented that confidential designations would not be used for tactical reasons and would be made only for sensitive, nonpublic information supported by a good-faith belief that the information had been kept confidential and should not be part of the public record.

The order does not change any burden of proof or persuasion, waive objections to discovery, waive privilege or other protections, or decide whether evidence will be admissible at trial.

Confidential Discovery Material

A party or nonparty may designate only the portion of discovery material that it reasonably and in good faith believes contains proprietary, trade-secret, or other sensitive, nonpublic information. Examples include medical and mental-health records; Social Security numbers, personal contact information, addresses, and financial information; names of alleged sexual-abuse or harassment victims and sexual partners; nonpublic personnel and employment records; sensitive information about a person’s private life; and extracts or summaries of those materials.

A receiving party generally may not disclose designated confidential material except to specified people, including the parties, counsel and their assigned staff, certain vendors, mediators or arbitrators, witnesses, experts, stenographers, and the court. Some recipients must first receive the order and sign a non-disclosure agreement. A producing party may disclose its own confidential material without obtaining such an agreement from its current or former employees.

Court Filings and Challenges

A party filing confidential material with the court must publicly file a redacted version and submit the unredacted version under seal, along with an application and supporting declaration that specifically justifies sealing. The order states that the court may unseal documents if it cannot make the specific findings required to show that sealing is essential and narrowly tailored. If the parties agree that particular information is both confidential and immaterial to the lawsuit, they may publicly file a version with that information redacted without submitting an unredacted version or filing a motion to seal.

A party may challenge a confidentiality designation by written notice. If the parties cannot resolve the dispute within 10 days, the challenging party must file a motion within the prescribed time. The material remains confidential while a timely motion is pending, and the designating party bears the burden of showing good cause for confidential treatment. A party seeking additional limits, such as an attorneys’-eyes-only restriction, must make a motion if the parties cannot promptly agree.

Privilege and Inadvertent Disclosure

The order establishes procedures for documents that may be protected by attorney-client privilege, the work-product doctrine, or another privilege or immunity from disclosure. A receiving party must avoid examining such material beyond what is needed to determine whether it may be protected and must promptly notify the producing party. If the producing party claims that material was inadvertently disclosed, the receiving party generally must return or destroy it within five business days and provide a certification, unless it disputes the claim. The producing party must then provide a privilege log, and the receiving party may ask the court to order production. The producing party retains the burden of establishing that the material is privileged or otherwise protected.

End of the Case and Enforcement

Unless the parties agree otherwise or another court orders otherwise, receiving parties must return or destroy hard-copy confidential discovery material within 60 days after the final disposition of the case, including appeals, and certify that they retained no copies or reproductions. Electronic material that cannot be returned or destroyed must continue to be treated as confidential. Outside counsel may retain one copy of specified case materials, subject to continuing confidentiality obligations.

The order remains binding after the litigation ends. The court retains jurisdiction over persons subject to the order as necessary to enforce its obligations or impose contempt sanctions. The order has no effect on using discovery material at trial or at a pretrial hearing, and the court made no finding that any particular discovery material is confidential.