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In trade secret litigation between two competing legal services firms, the United States District Court for the District of Connecticut recently ordered the plaintiff to produce documents without the attorneys’-eyes-only designation that the plaintiff believed was necessary.

The plaintiff, Huseby, LLC, alleges that its former employee, Lee Bailey, went to work for a competitor in the legal services industry and violated his agreements with Huseby by, among other things, disclosing customer lists and other confidential information to his new employer.

In response to discovery requests by Bailey and the other defendants, Huseby objected that the court’s standard protective order—which did not include an option to designate documents “attorneys’ eyes only”—was insufficient to protect its confidential information. Huseby withheld certain documents, requesting that the parties agree on stronger protections. The court noted, however, that Huseby had not moved to modify the protective order despite clear instructions in Judge Arterton’s protective order that the “claimed need for a more restrictive [protective] order does not relieve [the parties] from compliance with discovery requests in a timely fashion” and that “[i]t is counsel’s responsibility to timely move for further protection based on confidentiality.” Instead, after Huseby withheld documents that it claimed needed attorneys’-eyes-only protections for several months after its discovery responses were due, the defendants moved to compel.

Because Huseby failed to timely move to either modify the court’s protective order or seek a protective order of the documents it was withholding, the court granted the motion to compel and ordered the production of Huseby’s confidential documents without the protections afforded by attorneys’-eyes-only designations.

The court also partially granted the defendants’ request for attorneys’ fees in connection with compelling the production of the documents at issue.

Although confidentiality orders sometimes may feel like procedural minutiae, they are often the only protection a litigant has to maintain its trade secrets and other confidential information. When confidential information is at stake, litigants should ensure that there are appropriate confidentiality measures in place.

Case: Huseby, LLC v. Lee Bailey, et al., Civil No. 3:20-cv-00167 (JBA)