In Procaps S.A. v. Patheon Inc., No. 12-24356 (S.D. Fla. July 20, 2015), the plaintiff designated 95% of the electronic documents it produced as “highly confidential” and “attorneys’ eyes only” (“AEO”) under the parties’ agreed protective order. On defendant’s motion to compel, the district court held that the plaintiff would be required to re-review and re-designate its document production within ten days and pay $25,000 to the defendant for its fees. The court held that “an indiscriminate use of an AEO designation poses a significant handicap on the restricted litigant because discovery, trial preparation, and trial are made more difficult and expensive and an attorney cannot make a complete disclosure of the facts to the litigant.” The court cited several cases examining similar situations and held that “many courts confronted with this level of designations (and lower designations) brand the percentage as absurd.” The court rejected the plaintiff’s suggestion that the defendant identify the specific documents for which the defendant had an objection to the confidentiality designation because plaintiff’s “indiscriminate designation of documents” should not shift the cost of review of confidentiality to defendant.
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Court Sanctions Party That Over-Designated “Highly Confidential” Documents
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