United States District Court, M.D. Pennsylvania
ELAINE RICE, individually and on behalf of all others similarly situated, Plaintiff,
ELECTROLUX HOME PRODUCTS, INC., Defendant.
Matthew W. Brann United States District Judge
conjunction with an unrelated question as to the propriety of
subject matter jurisdiction, counsel recently brought to the
Court's attention a dispute regarding application of the
clawback provision contained within the stipulated protective
order-a trifling dispute, which I note, could be resolved as
much by a showing of professional courtesy as it could by a
Rule of Civil Procedure 26(c) “preserv[es] the trial
courts broad discretion to impose protective orders for good
cause.” Zenith Radio Corp. v. Matsushita Elec.
Indus. Co., 529 F.Supp. 866, 911 (E.D. Pa. 1981).
“The starting point for interpretation of a protective
order lies in its plain language.” S.E.C. v.
Merrill Scott & Assocs., Ltd., 600 F.3d 1262,
1271-72 (10th Cir. 2010). Accordingly, such an agreement
“must be construed according to general principles of
contract law, ” and “deference is to be paid to
the plain meaning of the language and the normal usage of the
terms selected.” City of Hartford v. Chase,
942 F.2d 130, 134-35 (2d Cir.1991).
essence, Defendant suggests that it inadvertently failed to
mark as confidential certain sales data and supply chain
information that it included in an earlier interrogatory
response. The protective order at issue specifically divides
confidential information into two tranches:
“Confidential” and “Highly
Confidential.” According to the agreement,
“Highly Confidential” information includes
“sensitive business . . . information affecting current
and future aspects of the designating party's . . .
ongoing business, the disclosure of which to third parties
who do . . . compete with the designating party . . . would
prejudice the designating party . . . in the operation of
such ongoing business.” ECF No. 35 at 2-3 ¶ 4.
Certainly, the contested sales figures and supply chain
information are not only “confidential” but they
are a type of “highly confidential” business
material as contemplated by the stipulated protective order.
the protective order includes a clawback provision that
allows the return of information to a party who has
inadvertently disclosed such confidential or highly
confidential information “as soon as reasonably
possible” after the mistake is discovered. Id.
at 9-10 ¶ 18. “‘As soon as reasonably
possible' simply means ‘within a reasonable time
under all of the circumstances.'”Ajnoha v. JC
Penney Life Ins. Co., 480 F.Supp.2d 663, 671 (E.D.N.Y.
2007). Accord N.Y. Univ. v. First Fin. Ins. Co., 322
F.3d 750, 754 (2d Cir. 2003) (“‘[A]s soon as is
reasonably possible' is a question of fact which depends
on all the facts and circumstances, especially the length of
and the reason for the delay.”).
that language implies that the disclosing party discover its
mistake before the clock begins to tick. In fact, lawyers
practicing in this venire of the Court often advance
precisely that interpretation in similar clawback disputes.
See, e.g., Garlick v. Trans Tech Logistics,
Inc., et al., 4:12-cv-01166 (Brann, J.), Plaintiff's
Brief in Support of Motion to Exclude, ECF No. 121 at 5
(“As soon as plaintiff realized that the defendants had
improperly obtained these confidential documents, plaintiff
asserted privilege and moved to have these psychiatric
records excluded. As such, plaintiff assertion [sic]
of privilege is timely and proper.”).
Defendant claims that it realized its mistake and contacted
counsel for Plaintiff on October 14, 2016 after it discovered
the released data was contained within a complaint filed on
October 11, 2016 in a related matter pending before the
United States District Court for the District of Maryland.
ECF No. 100 at 6. Counsel for Plaintiff here also represents
the plaintiff in that action. Regardless of how long the data
was inadvertently disclosed, however, I consider the
three-day period from October 11 through October 14 the
critical timeframe here-the only one that the law compels
truly matters in this instance. Of course, such a minimal
notice period is sufficient to satisfy the “as soon as
reasonably possible” standard given the circumstances
of this case.
NOW, THEREFORE, IT IS HEREBY ORDERED that, no later than
January 31, 2017, the parties refile under seal any pleadings
in this or any other case that attach or incorporate the
confidential information set forth in Defendant's