UrthTech LLC v. Gojo Industries, Inc.

Nature of the Order

The court entered a joint stipulated protective order under Federal Rule of Civil Procedure 26(c)(1). UrthTech LLC and Gojo Industries, Inc. agreed to the order. The opinion states that the case may involve trade secrets and confidential research, development, commercial, business, technical, and other information whose disclosure could harm the producing person’s competitive position.

Protected Information

The order establishes two categories:

- Confidential: Business, process, technical, or development information that falls within Rule 26(c)(1)(G) and whose disclosure is likely to cause competitive harm, or that is subject to a confidentiality obligation. - Attorneys’ Eyes Only: More sensitive or strategic business or technical information, including trade secrets or plans, whose disclosure is likely to cause significant competitive harm or violate a confidentiality obligation.

Information is not protected merely because a party designates it. The order excludes information that is public, was already known to the recipient without a confidentiality obligation, was obtained independently through lawful means, or became known through means that did not breach the order. Designations must be made in good faith after reasonable inquiry, generally by marking documents or identifying deposition testimony on the record.

Disputes Over Designations

A party challenging a designation must notify the producer in writing, identify the specific material, propose a new designation, and meet and confer. If the dispute remains unresolved, the proposed new designation applies after 14 days unless the producer files a motion to maintain the original designation. The producer bears the burden of proving that the designation is proper, and the original designation remains in effect while the dispute is pending.

Use and Disclosure Limits

Protected information may be used only for this litigation. Confidential information may be disclosed, subject to the order, to specified people such as outside and in-house counsel, employees directly involved in the case, people recording testimony, litigation experts and consultants, electronic-discovery vendors, and the court. Attorneys’ Eyes Only information has stricter limits and generally may not be disclosed to a party’s employees, except for certain employees or authors identified in the order.

Before receiving protected information, an expert or consultant must sign the undertaking in Appendix 1. A party seeking to disclose protected information to someone not authorized by the order must first reasonably try to obtain the producer’s permission and may seek court permission if that effort fails. A recipient who receives a subpoena or other compulsory process concerning protected information must promptly notify the producer.

Privilege and Inadvertent Disclosure

The order provides that an inadvertent disclosure of material protected by attorney-client privilege, work-product protection, or another applicable privilege or immunity does not waive that protection. After notice of an inadvertent production, the receiving party generally must return or destroy the material, destroy related notes or work product, delete or sequester the material from litigation-support systems, and stop using it unless the court orders otherwise. The receiving party may later ask the court to decide whether the material was protected or whether protection was waived for another reason.

Court Filings and Sealing

The protective order does not itself authorize filing documents under seal. A party must obtain a further court order addressing the specific documents or portions to be sealed. The order requires sealing applications to follow Judge Castel’s individual practices and to address the governing standards, including the Second Circuit’s decision in Lugosch v. Pyramid Co. of Onondaga. It also describes procedures for advance notice, public and sealed electronic filings, proposed redactions, and requests to file materials on paper when electronic filing is not possible or appropriate. Redactions required by Federal Rule of Civil Procedure 5.2 may be made without prior court approval.

Disposition and Effect

The court entered the agreed protective order. It requires the parties, at the conclusion of the case, to return or destroy protected information and related materials, subject to specified exceptions and written certification requirements. The confidentiality obligations survive the end of the case. The order does not resolve the merits of UrthTech LLC’s claims or Gojo Industries, Inc.’s defenses.