A recent decision from a New York state court should serve as a warning to parties litigating in New York: if you over-designate documents "Attorneys' Eyes Only" in discovery, you face the risk of sanctions. The decision was entered in an action brought by a software developer against Google.1 During the course of discovery, the parties agreed that documents containing "extremely sensitive" information could be produced with the designation "Highly Confidential – Attorney's Eyes Only," meaning that the documents so marked could only be reviewed by counsel.2
Google designated 233 documents as "Attorneys' Eyes Only."3 Google also designated a significant number of pages of deposition testimony as "Attorneys' Eyes Only."4 After the parties met-and-conferred, Google agreed to revise some of its "Attorneys' Eyes Only" designations, including by removing the designation on 32 of the 233 documents.5
Plaintiff ultimately filed a motion seeking an order directing Google to de-designate additional documents and testimony, and for sanctions for Google's abuse of the designations. After the motion was filed, Google attempted to get the plaintiff to withdraw the motion in exchange for Google de-designating certain documents and testimony. Plaintiff refused, but Google nonetheless withdrew the designations from all but 28 of the remaining "Attorneys' Eyes Only" documents and also de-designated some, but not all, of the deposition testimony it had designated.6
The court determined that Google should nevertheless be sanctioned for its initial designations, noting that "AEO designations 'shall be made as sparingly as possible'" and should not be used as a litigation tactic.7 The court also stated that "AEO designations are not negotiable. Discovery is either 'extremely sensitive' . . . or not. . . . A party cannot over designate documents then hold the improperly designated documents hostage until the adversary surrenders."8
The court found that the content of the documents and the testimony designated as "AEO" by Google did not support that restrictive designation, but instead supported the view that Google's designations were tactical. In particular, the court explained that "[t]he large number of designations, reviews, re-reviews, trickle of de-designations, culminating in a wholesale de-designation on the eve of argument of this motion does not support Google's assertion of appropriateness."9 Rather than "good faith cooperation," the court viewed Google's eventual, last minute de-designations as "a strategy to 'maliciously injure'" the plaintiff by forcing the plaintiff to "re-review" the documents after each round of de-designations.10 The court was also perturbed by Google's attempt to avoid the plaintiff's motion by proposing to de-designate additional documents if the plaintiff agreed to withdraw the motion for sanctions.11
The court held that sanctions were appropriate because the designations "impact[ed] communications between [plaintiff] and its attorney," "prevented the expeditious resolution of this litigation," and improperly "shifted the burden of reviewing its designations to" plaintiff.12 The court concluded that "over designation is not the solution" to concerns about protection of Google's confidential information, and that "[t]o allow such improper use of the Confidentiality Agreement is to reward that behavior."13
Google initially appealed the decision,14 but on December 30, 2019, it withdrew its appeal because the trial court has not yet determined the specific amount of the sanctions.15 Google's decision to withdraw its appeal leaves the court's decision in place, at least for now.
Although this decision may yet be appealed when the court determines the amount of the monetary sanctions against Google, it should nonetheless serve as a warning to New York litigants about the use of "Attorneys' Eyes Only" designations during discovery. In the wake of this decision, parties should take care both in determining which documents should be designated "Attorneys' Eyes Only," and also in their negotiations with opposing parties about the propriety of those designations.
As an additional word of caution, the court stated that, although its decision focused on the "AEO" designations, "[o]veruse of confidentiality designations is also sanctionable."16
1. Callsome Solutions Inc. v. Google,
Inc., Index No. 652386/2014; 2018 NY Slip Op 32716(U); 2018
N.Y. Misc. LEXIS 4852 (N.Y. Sup. Ct. Oct. 18, 2018). The
decision was not published in an official reporter.
2. 2018 N.Y. Misc. LEXIS 4852 at *3.
4. Id. at *4.
5. Id. at *5.
6. Id. at *8-9.
7. Id. at *12 (quoting Fendi Adele S.R.L. v. Burlington Coat Factory Warehouse Corp., 2006 U.S. Dist. LEXIS 89546, at *6 (S.D.N.Y. Dec. 5, 2006)).
8. Id. at *16-17.
9. Id. at *12.
10. Id. at *13.
11. Id. at *16-17.
12. Id. at *18-19.
14. Interlocutory appeals are permitted in New York state court. See CPLR 5501(c).
15. Callsome Solutions, Inc. v. Google LLC, Appeal Case No. 2018-5406, Dkt. No. 10.
16. 2018 N.Y. Misc. LEXIS 4852 at *1 n.2.
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