When involved in litigation, a company’s non-public information, such as trade secrets, can be prevented from becoming public information by a court-granted protective order. While a blanket protection is unlikely to be granted by a court, early consideration of information potentially sought by a plaintiff would allow a company to limit what becomes public and provide all parties a clear understanding of the level of protection required for key non-public information disclosed.
An employment case from a Kansas federal district court illustrates how a company can protect itself. The court rejected the plaintiff’s arguments that judicial proceedings should be open and available to the public and that the employer’s requested protective order was designed to increases costs and time. Azim v. Tortoise Capital Advisors, LLC, 13-2267-DDC (D. Kan. Nov. 5, 2014). The court granted the employer a protective order limiting access to the employer’s non-public data.
Plaintiff Arshad Azim sued his former employer, Tortoise Capital Advisors, LLC, its parent company, and several executives alleging that during his employment, his employer made misrepresentations to become certified as a minority business enterprise, made fraudulent representations to gain potential investments and investors, and made false filings with the Securities and Exchange Commission. Azim claimed he was retaliated against after reporting these violations and was discriminated against and terminated from employment.
The employer, objecting to the plaintiff’s pre-trial discovery of confidential business information such as tax, medical and other non-public information of the executives and the company, requested the information disclosed be protected by a protective order. Azim primarily argued that the protections sought were unnecessary and designed to drive up the time and expense of the case. Azim also argued against many of the protections sought given the “presumption in favor of open and public judicial proceedings.”
Chief among Azim’s objections was that the employer’s inclusion of “proprietary business information” was too broad and would lead to Tortoise using the broad definitions to create “roadblocks in discovery.” Tortoise countered that the phrase was necessary to protect the nature of the information potentially sought. The court agreed with Tortoise, finding that the inclusion of the phrase “proprietary business information” would not curtail Azim’s right to receive the information and would limit only the use of the information if disclosed.
Azim also objected to Tortoise’s proposed steps to keep the information confidential, including submission of redacted copies of documents, submission of documents for the court’s in camera review when necessary, and seeking to file documents under seal. Azim objected that all of the measures were “overkill,” designed to drive up the time and expense of litigation. Noting that the steps proposed were taken from its Guidelines for Protective Orders, the court disagreed, finding that there needed to be some manner for the parties to address confidentiality of information during the course of the case.