Shaughnessy v. Scotiabank

Nature of the Order

The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c) for nonpublic and competitively sensitive information that could be exchanged during discovery, the evidence-gathering phase of the case. The parties agreed to the proposed terms, and the court found good cause to issue a tailored confidentiality order for the pretrial phase.

Protected Information

The order covers discovery material designated either “Confidential” or “Attorneys’ Eyes Only.” A producing party may designate material as Confidential if it reasonably and in good faith believes the material includes previously undisclosed financial information, information about services provided to customers, business or marketing plans, customer information, personal or intimate information, or another category later given confidential status by the court.

A producing party may use the more restrictive Attorneys’ Eyes Only designation only for trade secrets or competitively sensitive business information whose disclosure is highly likely to cause significant harm to the designating party’s business or competitive position.

Who May Receive the Information

Confidential material may be disclosed to the parties, specified counsel and their staff, vendors working on the case, mediators or arbitrators who sign nondisclosure agreements, certain document recipients, potential witnesses who sign nondisclosure agreements, experts and specialized advisers who sign nondisclosure agreements, deposition transcription or video personnel, the court, and others approved in writing by the producing party.

Attorneys’ Eyes Only material may be disclosed to counsel and their staff, case-related vendors, approved mediators or arbitrators, experts and specialized advisers who sign nondisclosure agreements, the court, deposition transcription or video personnel, in-house counsel with a need to know, and others approved in writing by the producing party. Counsel must provide the order to specified recipients, obtain signed nondisclosure agreements, and retain those agreements.

Use, Sealing, and Challenges

Recipients may use protected material only to prosecute or defend this case and related appeals. They may not use it for business, commercial, competitive, or unrelated litigation purposes. The order does not waive objections to discovery, privilege, or other protections, and it does not decide whether any document, testimony, or other evidence will be admissible at trial.

A party objecting to a confidentiality designation may give written notice stating the grounds for the objection. If the parties cannot resolve the dispute, counsel must bring it to the court. When protected material is filed, the parties generally must publicly file a redacted version and file the unredacted version under seal. The order states that the court may unseal material if the required findings for continued sealing cannot be made and that the court is unlikely to seal material introduced as evidence at trial merely because it was previously designated confidential.

Inadvertent Disclosure and End of the Case

An inadvertent disclosure of material claimed to be protected by attorney-client privilege or attorney-work-product protection does not waive that protection under the order. After receiving a notice of inadvertent disclosure, the receiving party generally must return or destroy the material within five business days. The producing party must then provide a privilege log within five business days of notification that the material was returned or destroyed. The receiving party may ask the court to compel production, and the producing party retains the burden of proving that the material is privileged or protected.

Within 60 days after the final resolution of the action, including appeals, recipients must return or destroy Confidential Discovery Material upon request and certify that they have done so. Counsel specifically retained for the case may keep archival copies of certain case-related materials, but those copies remain subject to the order. The order survives the end of the litigation, and the court retains jurisdiction to enforce it and impose contempt sanctions.

Disposition and Effect

Judge Loretta A. Preska ordered the parties and other persons covered by the order to comply with these confidentiality requirements. The opinion is a discovery-related case-management order; it does not resolve the merits of Shaughnessy’s claims or the defendants’ defenses.