Document Review: Confidentiality Stipulations with Protective Orders
Document discovery under state and federal rules of civil procedure can endanger a litigant’s trade secrets, proprietary data, and other information that must remain confidential for financial, business, legal, and reputational reasons. However, “confidentiality” is not a legally recognized basis for withholding otherwise discoverable documents. And, if documents are withheld on this basis and the matter is presented for resolution pursuant to a motion to compel, courts will typically compel production but will also typically issue various forms of protective orders intended to protect the confidentiality of the produced documents. Knowing this, litigants will often negotiate and agree to confidentiality stipulations and present to a court an agreed protective order.
In general, documents produced pursuant to confidentiality stipulations or provisions of protective orders must be marked or stamped in a manner that is consistent and compliant with the stipulations or provisions of the protective order.
Proper coding of confidentiality levels: Most confidentiality stipulations and protective order provisions contain multiple levels of confidentiality. Four examples can be identified: :
- Confidential: Documents that are to be used only for the pending litigation and disclosed only to the parties, counsel, litigation staff, witnesses, retained expert witnesses, the court, etc.
- Highly confidential documents that cannot be seen or accessed by litigation staff, third-party legal support services, or non-expert witnesses
- Litigation attorneys’ and experts’ eyes only: Documents that cannot be seen by the parties, their in-house counsel, litigation staff, non-expert witnesses, or third parties ; they can only be seen by the attorneys directly handling the case and retained expert witnesses
- Litigation attorneys’ eyes only: Cannot be seen even by expert witnesses
The document review team must understand any and all confidentiality levels to ensure that documents are properly distinguished, identified, and stamped.
Baer Reed provides privilege review and other legal support services to law firms and in-house counsel teams around the world. To learn more, contact us online or call us today at 888-433-1990.
- On November 9, 2021
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