As this election season continues, Republican candidate Donald Trump has both political and legal concerns. In addition to running for President, Trump is the target of several class action lawsuits regarding his involvement in Trump University, LLC (Trump University), the now-defunct real estate program allegedly promising "yuge" riches to its students. A recent discovery order in one of these lawsuits may lead to more legal and political concerns for him.

In Cohen v. Trump, the purchasers of Trump University classes alleged mail and wire fraud based on misrepresentations regarding Trump's involvement in the program, and the program's status as a legitimate university. The US District Court for the Southern District of California certified the class on October 27, 2014. (See Cohen v. Trump, 303 F.R.D. 376 (S.D. Cal. 2014).)

On January 21, 2016, while on the campaign trail, Trump was deposed in the case. After, Trump's counsel designated large portions of the deposition transcript as confidential under the parties' protective order. The plaintiffs challenged the designations, arguing that Trump's counsel had ignored the narrow provisions of their protective order by designating large portions of non-sensitive and non-prejudicial information. The plaintiffs then requested that the court de-designate portions of the transcript containing Trump's statements about:

The plaintiffs also argued that the over-designation of these portions as confidential was burdensome because the parties would have to incur tremendous additional costs and fees in future motion practice to file the designated portions under seal.

On March 14, 2016, the magistrate judge issued an order granting and denying in part the plaintiffs' request (see Cohen v. Trump, No. 3:13-cv-02519 (S.D. Cal. Mar. 14, 2016)). Although Trump argued that his statements about public figures should be protected from public dissemination to prevent the testimony from being used against him in the current presidential campaign, the magistrate judge found that these statements were already publicly available. However, the magistrate judge refused to de-designate Trump's testimony about the licensing agreement at issue because they revealed sensitive business information that could impact Trump's future business dealings, and met the parties' own definition for confidential information in the protective order. As to Trump's statements regarding monetary exchanges between him and Trump University, the magistrate judge removed the confidential designation from that testimony, except for the specific dollar amounts, which constituted highly sensitive financial information.

Discovery in the case continues. Although Trump has reportedly insisted that he will never settle this (or any) lawsuit, for those of a different mindset, Practical Law's Practice Note, Settlement Tactics in US Litigation may help.

Additionally, Practical Law has several resources to assist counsel with navigating confidentiality orders in discovery: