This series has covered all different aspects of defense confidentiality or protective orders. In part one, making the defense meet its burden was covered. Part two was an overview on “trade secret” or “proprietary information.” The third part surrounded common terms the defense may use in their Confidentiality or Protective Orders to gain a strategic advantage. Part four involved public access laws.
In this fifth and final part of our series, we discuss the terms you may choose to raise as an alternative to the Confidentiality Orders drafted by the defense. First, it should be noted that the long-standing rules of discovery and depositions, as well as motions for protective orders and motions for sanctions provide adequate safeguards and remedies for parties who abuse the civil justice system. Generally, there is no need for courts to prophylactically enter an order that dramatically alters the well-established rules of discovery to favor the defense, which the defense’s proposed Confidentiality Orders invariably do.
Proposing Alternative Terms
If a court is inclined to enter some form of Confidentiality Order, it should fashion an Order that is narrowly tailored; one that states that the burden of proving that documents/materials contain confidential or trade secret information remains on the party asserting that fact, and one that does not require Plaintiff’s counsel to divulge any fact or opinion work product.
More specific terms to consider:
- A term that requires the designating party to first make a bona fide determination that the material is, in fact, a trade secret or contains other confidential information and that disclosure to third parties would cause damage to its competitive position in the market.
- Also consider a term providing that once that party designates such information as “Confidential”, it must make the designation by notifying all counsel in writing and providing a brief summary of the factual basis for the designation.
- A term providing that the opposing party may at any time challenge such designation and that the failure to make such a challenge during a specified period of time will not constitute a real or implied waiver of the right to make that challenge.
- It can be helpful to have a term providing that upon notice of a challenge to such designation, the designating party has 30 days to withdraw the designation. If there is no withdrawal, the challenging party may seek the court’s intervention, and the burden will be upon the designating party to prove that the “confidential” or “trade secret” designation meets the requirements of Georgia law.
Other terms:
- A term providing that the people to whom the “confidential” information may be disclosed are court and court personnel, persons assisting or retained by counsel of record (including experts and consultants), insurers of any party, and directors, officers and employees of any party. Prior to any such disclosures, the individuals to whom such information will be disclosed (aside from the court and court personnel) must sign an agreement verifying their consent to be bound by the terms of the Protective Order.
- A term providing that witnesses in deposition may be questioned using such “confidential” material without the witness agreeing to be bound by the Protective Order. Any party may—either during the deposition or within 15 days of the date the transcript is made available by the court reporter—designate all or any portion of the transcript as “confidential”, at which time the provisions of the Order would apply. Such designation must be clearly made to all counsel for all parties by reference to deponent, date of deposition, page and lines of the deposition, as well as (if applicable) exhibit number. Only the portions of the deposition transcript designated by the designating party during this time period shall remain “CONFIDENTIAL.”
Remaining important terms:
- A term providing that any such confidential materials should be filed under seal and labeled “CONFIDENTIAL” unless the court has ruled otherwise.
- Also consider a term providing that counsel for the receiving parties shall not be required to return any documents produced pursuant to the Order at the conclusion of the case and may retain the documents pursuant to the terms of the Order.
- A term providing that the trial court shall retain jurisdiction to enforce the terms of the Order.
In short, Confidentiality Orders are one way the defense seeks to gain a tremendous strategic advantage at the outset of discovery. Carefully consider the obvious and not-so-obvious effects of the terms proposed by the defense and never agree to any orders that shift the burden to the plaintiff.