10/13/08 JULIA KRIPKE - CONFIDENTIAL STAMPS 1

The CONFIDENTIAL Stamp• In litigation,

each side produces* documents* in response to the other side’s discovery* requests.– NB: Not all documents are discoverable.

Some are privileged* and must be LISTED* but need not be produced (usually).*

• Produced documentsare stamped “CONFIDENTIAL”if they are protected bya Protective Order issued by the Court.

* Ask me about the *s

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What is a protective order? • A protective order prohibits the disclosure or discovery of

documents subject to it. (FRCP 26(c)(1)(A) 3rd sentence):“The court may … issue an order to protect a party

…from

annoyance, embarrassment, oppresion, or undue burden or expense…

specifying terms … for the disclosure ….” • A standard TERM is that sensitive information

such as company financial records and trade secrets (e.g., customer lists)

will be stamped “confidential” and can be seen only by attorneys.

Sometimes a higher level confidential stamp limits disclosure to outside counsel* only.

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The confidential stamp on the Fontirroche file history• The Fontirroche file histories are public record.

They cannot be subject to a protective order.

• The Fontirroche lawyers mis-stamped these documents as confidential.

• Details for aspiring litigators:– Maybe these documents from the files of

an attorney or executive, all of whose documents were routinely being stamped confidential.

– If a public record document like a file history had handwritten notes by, e.g., an attorney or inventor, THOSE notes might be confidential or even privileged. How then to produce it?

[A] Produce a CLEAN copy of the file history from whoever has one; &/or [B] Make a redacted* copy from the annotated one, and stamp it ‘REDACTED.’ (If asked, counsel must be honest about where this copy came from.) AND:

Produce the annotated copy with a CONFIDENTIAL stamp – OR -List the annotated copy on a PRIVILEGED document list.

depending on the nature of the annotations.