At the Practising Law Institute conference in which I recently participated entitled Noncompetes and Restrictive Covenants 2024: What Every Lawyer, Human Resources Professional, and Key Strategic Decisionmaker Should Know, one of the questions, or perhaps more accurately, problems, that was posed to my panel was how can lawyers lawyers make sure that their clients' electronic devices and accounts can be searched by a forensic specialist for responsive, relevant documents while simultanously assuring that the clients' confidential, trade secret, or even garden-variety private, personal information - be kept that way, rather than being exposed for the world to see? A similar quandary arises when these documents need to be reviewed by other third parties, such as experts.
The short answer was - and is - that there are some robust measures that have been adopted nearly across the board by both the Federal courts and the Commercial Divisions of the State courts whereby the parties themselves, as well as their respective counsel, must sign a form Confidentiality Order that is "So Ordered," i.e., signed off on, by the assigned Judge, which requires everyone involved to treat materials designated as confidential by either side appropriately, and insure that these materials are not disseminated on threat of sanctions. Furthermore, these form agreements also include an addendum which must be signed in advance by any third party that will be viewing or analyzing these confidential documents whereby they agree to be bound by the terms of confidentiality order as well.
