As litigators in the Commercial Division, everyone knows that discovery can be particularly burdensome and time consuming. This is especially true when you have clients that are very protective of their information. The Commercial Division already has anticipated this by offering attorneys a model confidentiality agreement, which in some cases can be further negotiated by the parties for their additional protection.
In Callsome Solutions Inc. v. Google Inc., the parties, as Google would come to regret, included an Attorneys’ Eyes Only (“AEO”) provision in their confidentiality agreement. Manhattan Commercial Division Justice Andrea Masley scolded and sanctioned Google for its AEO designation of hundreds of documents and thousands of lines of deposition testimony. The Court stated that the “AEO designation was reserved for truly secret documents” and that it should be used “as sparingly as possible.” This is because “improper designations, not only delay, but also impact. . . the communications between [client] and its attorney.” Therefore, in designating documents AEO, litigators must take careful consideration to limit the documents with that designation and make sure those documents are only designated in good faith.
In Callsome, the parties entered into stipulated confidentiality agreement that called for two tiers of confidentiality: (1) confidential; and (2) highly confidential – attorneys’ eyes only. The latter designation was designed to protect confidential information that is “extremely sensitive.” After Google designated hundreds of documents and thousands of lines of deposition testimony, the plaintiff requested that Google de-designate groups of documents and testimony, Google then engaged in a “slow trickle” of de-designation.
In issuing sanctions against Google, it was not just Google’s over-designations that irritated the court, it was also the “slow trickle” of corrections. Specifically, the Court found that this “trickle” did not “rectify the initial improper designations.” Further, Google even attempted to use the corrections as a negotiation tactic within the litigation, attempting to extract concessions from the plaintiff. The Court found that “[n]o public policy is served by crediting Google’s purported offer to compromise. . .” because “AEO designations are not negotiable.”
A party cannot over designate documents then hold the improperly designated documents hostage until the adversary surrenders. Such conduct will not be countenanced by this court.
The Court held that “Google’s conduct flouts widely accepted rules of civility embedded in New York litigation and in particular the Commercial Division,” and that it “effectively prevented the expeditious resolution of this litigation.” The Court further held that Google engaged in frivolous conduct warranting sanctions under 22 NYCRR Section 130-1.1.
The first takeaway here is that confidential designations of any kind, particularly AEO designations should be made in good faith. Second is that after designating documents AEO, when faced with a request to de-designate, you should ensure that you do not delay the litigation by refusing to do so or attempt to use your designations as a negotiating tactic. Make sure you have a good faith basis for your designation, and stick to your guns.
However, if you believe that a document does not warrant such designation, but your client is still skittish, you can, as the Court suggested, amend (or draft) the confidentiality agreement to guarantee your client further protections such as providing for financial penalties in the event of a breach. Over designation only delays litigation and shifts the burden to your opponent, which is never appropriate.