Of the many burdens litigators must shoulder, among the most irksome may be disputes over what documents are confidential and what agreements and markings are necessary to keep them that way.
These confidentiality issues have become more pressing in the era of e-discovery, as ever-burgeoning masses of electronically stored information inundate the discovery process. Determining and demarcating the confidentiality of ESI may overwhelm harried counsel who must review their client's data before producing it to an opponent.
A recent decision in the Southern District of Indiana offers an economical, common-sense approach to confidentiality -- one that practitioners and courts alike should consider.
In Containment Technologies Group Inc. v. American Society of Health System Pharmacists, No. 07 Civ. 997, 2008 WL 4545310 (S.D. Ind. Oct. 10, 2008), the plaintiff claimed that an article written and published by the defendants, which compared an "aseptic isolator" medical device manufactured by the plaintiff with competing products, was defamatory.
When discovery commenced, the defendants requested the production of documents concerning the plaintiff's testing and design of its isolator. The plaintiff objected to producing the documents without a protective order, arguing that some of the requested documents contained proprietary information. The parties were unable to agree on the terms of such an order. And so, the plaintiff moved for application of its proposed protective order and the defendants moved to compel production -- and also submitted a dueling version of the protective order along with their motion.
The core of the parties' dispute was whether the protective order would include a provision, as the defendants insisted, requiring that "entire documents only be stamped confidential if indeed the entire document is confidential, and otherwise [that] only those portions or pages that are confidential be marked as such"; the defendants based this argument on language in Citizens First National Bank of Princeton v. Cincinnati Insurance Co., an opinion by the U.S. Court of Appeals for the Seventh Circuit that states: "a document that contains trade secrets may also contain material that is not a trade secret, in which case all that would be required to protect a party's interest in trade secrecy would be redaction of portions of the document."[FOOTNOTE 1]
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Source: law.com
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