Commercial litigation often involves the production of information and data not publicly available. Confidentiality orders can be crucial to shield competitive information during the discovery process. These orders can help to prevent the dissemination of information such as trade secrets, financial data, and other sensitive proprietary information in lawsuits. However, as a litigant, it is important to understand how these orders work and under what circumstances they can be used.
What is a Confidentiality Order?
Confidentiality orders can govern the exchange, production, and discovery of documents in a commercial lawsuit. Confidentiality orders are usually joint orders agreed to by the parties. These orders prevent the disclosure of confidential information that would be detrimental to a party’s business, customers, or clients if released.
Confidentiality orders should be specifically tailored to the unique needs of a case. , A confidentiality order can accomplish these objectives in a commercial case:
- Exclude specific items or categories of items in a discovery demand
- Require that discovery be conducted as an oral disposition, instead of interrogatories
- Specify the conditions for inspecting, copying, or testing the items sought in discovery
- Prevent the disclosure of a trade secret or other data
- Demand that the discovery produced be sealed and only permitted to be opened by court order
While confidentiality orders can be valuable tools in litigation, such orders can also be subject to abuse. Aggressive counsel may sometimes, in bad faith, over-designate the documents meant to be protected — and increase the expense and burden imposed on the other party. When parties use these orders, it’s essential to be aware of the applicable rules to avoid the potential for the imposition of sanctions.
Why is a Confidentiality Order Necessary?
An array of commercial transactions and business relationships involve the disclosure of confidential information between parties. Since this information can be made public if litigation arises, this information is critical to ensure it is safeguarded when there is a legitimate need for privacy — and to reduce the risk of exposure. In such cases, a confidentiality order should be drafted upon the start of the discovery process, describing the documents privileged and confidential, the circumstances under which they may be used, and the consequences if the information is inadvertently released.
Determining the Level of Confidentiality Needed
A good confidentiality order allows for different levels of protection. Two-tiered protection can involve designating a broad category of information as confidential and a more specific subset of data as “Attorneys’ Eyes Only.” Generally, information designated as “Attorneys’ Eyes Only” may not be shared with the parties to the litigation. Instead, it can only be viewed by the parties’ legal counsel. This protection may be necessary in cases about trade secrets, patent infringement, and other disputes involving highly sensitive information that could cause competitive harm.
Contact an Experienced New York Commercial Litigation Attorney
Commercial litigation often involves highly sensitive information that must be protected. If you are facing a business dispute, it’s vital to have a knowledgeable attorney by your side who can guide you through the complexities of the discovery process and safeguard your proprietary information. Brinen & Associates provides reliable representation for a broad scope of commercial matters and works diligently to ensure positive results in each case. Call (212) 330-8151 or send us a message to learn how our New York Business Law attorneys can assist you with your commercial litigation matter.