Farah v. Emirates

Background

The plaintiffs are Kayenat Farah, Joseph Cammarata, Charlotte Armstrong, and Violet Simpson. The defendants are Emirates and Emirates Severance Plan. The parties requested a protective order under Federal Rule of Civil Procedure 26(c) to protect nonpublic and competitively sensitive information that could be disclosed during discovery. The parties agreed through counsel to the order's terms, and the court found good cause for issuing it.

Confidentiality rules

The order allows a producing party to mark only material that it reasonably and in good faith believes contains specified confidential information. The listed categories include previously undisclosed financial information; information about ownership or control of a nonpublic company; business, product-development, or marketing plans; and personal or intimate information, including personal medical information. The court may later grant confidential status to other categories.

Covered people generally may disclose confidential discovery material only to specified recipients. These include the parties and certain insurers, counsel and their staff, outside litigation vendors, mediators or arbitrators, document authors and addressees, witnesses, experts, deposition stenographers, and the court. Certain recipients must first receive the order and sign a nondisclosure agreement.

The material may be used only to prosecute or defend this action and any appeals, not for business, commercial, competitive, or other litigation purposes. People with access must take precautions against unauthorized or accidental disclosure. The order also says that a confidentiality designation does not waive objections to discovery, privileges, or protections, and does not decide whether evidence is admissible at trial.

Sealing and disputes

A party filing confidential material under seal must publicly file a redacted version and submit an unredacted version under seal. The order requires supporting submissions explaining, on a particularized basis, why continued sealing is justified. The producing party retains the burden of showing that sealing is appropriate, and the court retains discretion over whether to keep material confidential when it is submitted in connection with a motion or proceeding. The order warns that material introduced at trial is unlikely to remain sealed.

A party may object to a confidentiality designation before trial, and the parties must bring unresolved disputes to the court under the court's individual practices. A party may also request additional limits on disclosure, such as attorneys'-eyes-only treatment in extraordinary circumstances.

Privileged material and end of the case

If privileged or work-product-protected information is accidentally disclosed, the disclosure does not by itself waive the protection. After notice, the receiving party generally must return or destroy the material within five business days and provide a certification. The producing party must then provide a privilege log, and the receiving party may ask the court to compel production. The producing party bears the burden of establishing that the material is privileged or protected.

Within 60 days after final disposition of the action, including appeals, recipients must return or, with the producing party's permission, destroy confidential discovery material, subject to the order's exception for documents required to be preserved by law. Certain litigation attorneys may retain archival copies, which remain subject to the order. The order continues after the litigation ends, and the court retains jurisdiction to enforce it and impose contempt sanctions.

Disposition

Judge Sarah Netburn ordered the parties and all other people covered by the order to comply with the stipulated confidentiality agreement and protective order. The opinion is a discovery-related procedural order and does not resolve the merits of the lawsuit.