Specific Post‑Termination Return Clauses Control: Fifth Circuit Clarifies That Protective Orders Do Not Bar Returning Protected Material to the Producing Party

Introduction

In Ocwen Loan Servicing, L.L.C. & Ocwen Financial Corp. v. Boyd & Associates & Samuel L. Boyd, consolidated Nos. 24‑40580 & 24‑40581 (5th Cir. Nov. 3, 2025) (per curiam) (unpublished), the United States Court of Appeals for the Fifth Circuit resolved a recurring problem in discovery practice: whether a protective order’s “Qualified Persons” limits can be wielded to prevent a receiving party from returning Protected Information to the very party that produced it once the underlying case ends.

The panel reversed a district court’s contrary interpretation, holding that the orders’ specific post‑termination “return or destroy” clause authorizes return to the producing (designating) party’s counsel and controls over more general disclosure limits. In doing so, the court emphasized a plain‑text, purpose‑aligned approach to interpreting protective orders and rejected a literal reading that would produce “absurd” consequences.

Although not designated for publication under 5th Cir. R. 47.5, the opinion provides a clear and practical rule for litigants and courts navigating post‑litigation obligations under protective orders.

Background and Parties

The dispute arises out of two earlier qui tam False Claims Act (FCA) suits in the Eastern District of Texas, brought by attorney Samuel L. Boyd and Boyd & Associates (collectively, “Boyd”) on behalf of relator Michael Fisher (the “Fisher” matters). The suits alleged misconduct by Ocwen Financial Corporation and Ocwen Loan Servicing, L.L.C. (collectively, “Ocwen”) in connection with the federal Home Affordable Modification Program (HAMP).

In the Fisher cases, the district court entered identical protective orders to facilitate extensive discovery. Ocwen produced more than 23 million pages of documents designated as “Protected Information.” The suits settled in 2017, and the court dismissed them with prejudice while retaining jurisdiction to enforce the protective orders.

In 2019, Boyd filed another qui tam action against Ocwen, again related to HAMP. During later state‑court litigation between Ocwen and Boyd over alleged settlement breaches, Ocwen sought discovery of materials Boyd had provided to federal investigators, including Ocwen documents that had been protected in Fisher. After the state court indicated the materials were relevant but deferred to the federal court as the issuing authority over the protective orders, Boyd asked the federal district court to enforce those Fisher orders to block producing Ocwen‑designated materials “back to” Ocwen. The district court agreed, reading the orders’ “Qualified Persons” list to exclude Ocwen’s counsel and thereby to bar return. Ocwen appealed.

Summary of the Opinion

The Fifth Circuit reversed. Interpreting the protective orders de novo, the court held that:

Paragraph 5’s “Qualified Persons” limits governed disclosures while the Fisher litigation was pending.
Paragraph 15’s specific post‑termination directive—requiring the receiving party to “destroy or return the Protected Information to the counsel for the Designating Party” within 90 days—authorizes return to the producing party’s counsel after the case ended.
Paragraph 4’s phrase “as provided below” confirms that later provisions qualify earlier general rules.
Interpreting the orders to forbid return to the producer would contradict the orders’ purpose, nullify Paragraph 15, and produce “absurd” results.

The panel thus ordered Boyd to return all documents and to destroy none. Judge Dennis dissented from that remedy on the narrow ground that Ocwen purportedly did not request such relief on appeal.

Detailed Analysis

1. The Protective Orders’ Key Provisions

Paragraph 1 (Definition): “Protected Information” consists of documents designated confidential by a “Designating Party” and produced to a “Receiving Party.”
Paragraph 4 (Use Restriction): Protected Information may be used or disclosed only for “matters arising from the litigation of this matter, as provided below.”
Paragraph 5 (Qualified Persons): Limits disclosure of Protected Information to a defined list of recipients (“Qualified Persons”), including counsel for the Receiving Party, but not listing the Designating Party’s counsel.
Paragraph 15 (Post‑Termination Protocol): Upon termination, the Receiving Party “shall destroy or return the Protected Information to the counsel for the Designating Party” within 90 days, while allowing retention of attorney work product that refers or relates to such information (with strict limits on subsequent disclosure).

2. The Court’s Legal Reasoning

The court applied familiar interpretive canons, treating protective orders much like integrated written instruments:

Plain Text Controls: The “starting point” is the orders’ text. See Moore v. Ford Motor Co., 755 F.3d 802, 806 (5th Cir. 2014) (citing S.E.C. v. Merrill Scott & Assocs., Ltd., 600 F.3d 1262, 1272 (10th Cir. 2010)).
Specific Over General: A specific, later‑in‑order clause governs over earlier, more general provisions. See Claimant ID 100218776 v. BP Expl. & Prod., Inc., 712 F. App’x 372, 375 (5th Cir. 2017).
Effect to Every Clause: Read the instrument to avoid rendering any clause meaningless.
Purpose and Common Sense: Interpret prohibitions in light of the order’s purpose and common sense. See Static Media LLC v. Leader Accessories LLC, 38 F.4th 1042, 1048 (Fed. Cir. 2022) (quoting In re Dual‑Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir. 1993)).
Avoid Absurdity: Reject readings that produce absurd results. See Motor Vehicle Cas. Co. v. Atl. Nat’l Ins. Co., 374 F.2d 601, 605 (5th Cir. 1967); United States v. Winstar Corp., 518 U.S. 839, 907 (1996).

Applying these canons, the court concluded that Paragraph 15 expressly authorizes post‑termination return to the producer’s counsel. Paragraph 4’s “as provided below” invites that reading by signaling that subsequent provisions qualify earlier limits. Importing the Paragraph 5 “Qualified Persons” list into the post‑termination context would nullify Paragraph 15 and create an unworkable directive (“return to counsel for the Designating Party”) that could never be satisfied because that counsel is not on Paragraph 5’s list. The court also noted the orders’ evident purpose: to prevent harmful public dissemination of confidential materials, not to fence off the producing party from its own documents.

Finally, the court emphasized the practical incoherence of Boyd’s reading. It would:

Convert a mandatory return obligation into an impossible task;
Expose a party to sanctions for returning documents to the very entity that designated them; and
Allow a receiving party to block targeted discovery in later litigation by invoking a prior protective order that binds only the receiving party—an “absurd tenet” rejected by courts. See Carter‑Wallace, Inc. v. Hartz Mountain Indus., Inc., 92 F.R.D. 67, 69 (S.D.N.Y. 1981).

3. Precedents Cited and Their Role

Moore v. Ford Motor Co., 755 F.3d 802 (5th Cir. 2014): Establishes that interpreting a protective order is a legal question reviewed de novo and begins with the order’s plain language. This frames the Fifth Circuit’s approach here.
S.E.C. v. Merrill Scott & Assocs., Ltd., 600 F.3d 1262 (10th Cir. 2010): Cited to reinforce the primacy of plain‑text interpretation of court orders regulating discovery.
Claimant ID 100218776 v. BP Exploration & Production, Inc., 712 F. App’x 372 (5th Cir. 2017): Supports the canon giving effect to all clauses and preventing a general provision from undermining a specific, narrower one—central to prioritizing Paragraph 15 over Paragraph 5.
Static Media LLC v. Leader Accessories LLC, 38 F.4th 1042 (Fed. Cir. 2022) & In re Dual‑Deck, 10 F.3d 693 (9th Cir. 1993): Emphasize reading protective orders to align with their practical purpose and common‑sense application, undercutting Boyd’s hyper‑literal position.
Motor Vehicle Casualty Co. v. Atlantic National Insurance Co., 374 F.2d 601 (5th Cir. 1967) & United States v. Winstar Corp., 518 U.S. 839 (1996): Provide the anti‑absurdity principle to reject interpretations leading to senseless results.
Carter‑Wallace, Inc. v. Hartz Mountain Indus., Inc., 92 F.R.D. 67 (S.D.N.Y. 1981): Illustrates courts’ reluctance to let protective orders be used as swords to resist legitimate discovery in later matters, especially by those not bound by the earlier order.

4. Scope of Relief and Partial Dissent

The panel not only reversed the district court’s reading but also directed that Boyd “return all documents and destroy none.” Judge Dennis dissented from this remedial directive on the ground that Ocwen did not request this specific relief on appeal. The majority’s disposition, however, reflects concern over compliance with Paragraph 15 and the need to avoid destruction of materials that may be relevant in ongoing disputes, while restoring possession to the designating party as the orders require.

5. Impact and Implications

While unpublished, the opinion provides a practical rule with broad implications for discovery practice:

Protective Orders Are Not Shields Against Producers: A receiving party cannot invoke “Qualified Persons” limits to prevent return of Protected Information to the producing party post‑litigation.
Drafting Clarity Matters: Drafters should ensure return‑or‑destroy provisions expressly authorize return to the designating party’s counsel, and should consider clarifying that post‑termination return is exempt from “Qualified Persons” limits. Including the designating party’s counsel on the “Qualified Persons” list can avert similar disputes.
Compliance and Timing: Parties must track and timely comply with post‑termination obligations. Retention of Protected Information beyond the permitted work product carve‑out invites enforcement, including potential compelled return.
Purpose‑Aligned Interpretation: Courts will read protective orders in light of their purpose—to prevent harmful disclosure to outsiders—rather than to bar a producer’s access to its own materials.
Subsequent Litigation and Investigations: The opinion discourages attempts to leverage earlier protective orders to resist targeted discovery in later cases or to frustrate communications with the producing party about its own documents.
Preservation vs. Destruction: The directive to “destroy none” underscores the tension between return obligations and preservation duties in ongoing or foreseeable litigation. Courts may prefer return over destruction to avoid spoliation risks.
FCA/Whistleblower Context: Counsel handling FCA relator materials must observe protective‑order limits even when interacting with government investigators and, after termination, must follow return/destroy protocols while relying only on permissible work product for any subsequent matters.

Complex Concepts Simplified

Protective Order: A court order—typically under Federal Rule of Civil Procedure 26(c)—that restricts how parties may use or disclose confidential information exchanged in discovery.
Designating Party: The party that marks a document as confidential and produces it in discovery.
Receiving Party: The party that receives the confidential material under the protective order.
Protected Information: Documents designated “Confidential” under the order.
Qualified Persons: The defined set of people to whom the receiving party may disclose Protected Information during the litigation (e.g., counsel of record, certain experts).
Return‑or‑Destroy Clause (Post‑Termination): A common provision requiring the receiving party to either return all Protected Information to the producer’s counsel or destroy it within a set time after the case ends, often with a carve‑out allowing retention of attorney work product that references the information (without disclosing the protected content itself).
Plain‑Text/Specific‑Controls‑General/Avoid‑Absurdity Canons: Judicial tools to interpret written instruments like protective orders so as to give effect to each clause, prioritize specific directives over general ones, and reject interpretations that yield nonsensical outcomes.
Qui tam FCA Action: A lawsuit under the False Claims Act filed by a private relator on behalf of the United States alleging fraud against the government; the government may intervene or monitor the case.

Practice Pointers

When drafting protective orders, explicitly state that post‑termination return to the designating party’s counsel is permitted notwithstanding the “Qualified Persons” limitations.
Include the designating party’s counsel among “Qualified Persons” or create a separate post‑termination disclosure category to avoid textual ambiguity.
Maintain a precise inventory of Protected Information received and track the 90‑day (or specified) deadline to return or destroy after termination.
Segregate attorney work product that references Protected Information and ensure subsequent use does not reveal the protected content.
In later litigation, do not assume a prior protective order can bar return of documents to the producing party or preclude targeted discovery. Seek guidance from the issuing court if necessary.
If a protective order is silent or ambiguous, move promptly for clarification or modification before distributing materials, rather than risking noncompliance.

Conclusion

The Fifth Circuit’s decision provides a straightforward but important clarification: when a protective order imposes a post‑termination duty to return or destroy Protected Information, that specific directive authorizes return to the producing party’s counsel and controls over earlier, general disclosure limits. Interpreting protective orders through the lens of text, purpose, and common sense avoids absurd outcomes and preserves the orders’ true function—preventing harmful public dissemination, not blocking the producer’s access to its own documents.

Key takeaways include the primacy of specific post‑termination clauses, the limited role of “Qualified Persons” lists in that context, and the necessity of careful drafting and compliance. Even as an unpublished disposition, the opinion offers persuasive guidance for courts and practitioners navigating the practical realities of discovery confidentiality and post‑litigation obligations.