I. INTRODUCTION

*1 By Order dated June 8, 2022, the undersigned was appointed Special Discovery Master in this case. Upon review of the pending discovery disputes, it became apparent that the first step in addressing the parties’ disputes was the entry of a Protective Order to allow the production of documents responsive to the parties’ respective requests for production. Although counsel for the parties had negotiated for many months in an effort to reach agreement on a Protective Order, those efforts were unsuccessful.

After consultation with counsel, the undersigned requested that the parties provide me with their respective position regarding the contested provisions in the Proposed Protective Order. After reviewing those positions, the undersigned scheduled an argument and mediated meet & confer with counsel on August 26, 2022. Following that mediated meet & confer and argument, I advised counsel that I would prepare a Proposed Protective Order to recommend to the Court.

II. ANALYSIS AND DECISION

Although all relevant material is discoverable unless an applicable evidentiary privilege is asserted, Federal Rule of Civil Procedure 26(c) establishes that a “court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense ...” UGI Sunbury LLC v. A Permanent Easement for 0.0933 Acres, No. 3:16-CV-00790, 2016 WL 7118195 at *1, 2016 U.S. Dist. LEXIS 168964 at *2-3 (M.D. Pa. Dec. 7, 2016). “Good cause” for a protective order is established when it is specifically demonstrated that the disclosure will cause a clearly defined and serious injury. Glenmede Tr. Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995). The Third Circuit has recognized several factors, which are neither mandatory nor exhaustive, that may be considered in evaluating whether good cause exists:

Id. (citing Pansy v. Borough of Stroudsburg, 23 F.3d 772, 787-91 (3d Cir. 1994)).

Applying these principles to the Protective Order requested by Fiserv in this case, I have determined that some level of protection is appropriate. Moreover, I have determined that a narrow “HIGHLY CONFIDENTIAL – ATTORNEY'S EYES ONLY” designation is appropriate although I expect that designation to be used sparingly in this case.

In arguing against Entry of a Protective Order and, in particular the ability to designate a document “HIGHLY CONFIDENTIAL – ATTORNEY'S EYES ONLY”, Plaintiff Bessemer argues that the Master Agreement (“Agreement”) between Fiserv and Bessemer essentially contains a waiver by Fiserv of any right to confidentiality for information provided to Bessemer. Based on my detailed review of the Agreement, I find that no such waiver exists under the terms of that Agreement. To the contrary, Section 3 of the Agreement clearly obligates Bessemer to treat as confidential the same types of information that may be designed confidential under the terms of the Proposed Protective Order. That section also, by its terms, survives any termination or expiration of the Agreement. Although Bessemer points to Section 11(k) of the Agreement entitled “Publicity”, I do not read that provision as supplanting or limiting the confidentiality obligations set forth in Section 3 of the Agreement.

*2 Nevertheless, upon my evaluation of the language proposed by Fiserv in the Protective Order, I found a number of the “catch-all” provisions describing information that can be designated “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” to be too broad. I also modified the Protective Order to ensure that designated information is produced while any disputes regarding the designation are heard and resolved so that the parties can move forward with the scheduling of depositions and follow-up discovery.

Attached as Exhibits “A” and “B” to this Report and Recommendation are a redline version of the Proposed Protective Order showing the changes that I made to the Proposed Protective Order submitted by Fiserv and a clean version of the Proposed Protective Order that I recommend this Court enter in this case.

III. CONCLUSION

Based on the above analysis, I hereby recommend that this Court enter the Proposed Protective Order attached as Exhibit “B” to this Report and Recommendation.