DB Homes Designs, LLC v. Wilhelm
- Philip Halpern
- 7:23-cv-11307
- U.S. District Court · Southern District of New York
- 11
In DB Home Designs v. Wilhelm, Judge Halpern entered a protective order governing confidential discovery and related disclosures.
The parties, their counsel, representatives, agents, experts, consultants, insurers, litigation vendors, third parties providing discovery, witnesses and other persons who receive or have notice of protected discovery material are bound by the order’s applicable terms.
What happened
DB Home Designs, LLC v. Wilhelm et al. is a federal case in which the parties asked the court to protect nonpublic and competitively sensitive information exchanged during discovery. The opinion does not describe the underlying claims.
The order allows parties to label qualifying discovery material “Confidential” or “Highly Confidential—Attorneys’ Eyes Only.” It limits who may receive that material and requires certain recipients, such as witnesses, mediators, and experts, to sign nondisclosure agreements.
Judge Philip M. Halpern found good cause and issued the stipulated protective order on June 24, 2024. The order also sets procedures for challenging confidentiality designations, filing protected material with the court, handling inadvertently disclosed privileged information, returning or destroying protected material, and enforcing the order.
The detailed version
- DB Homes Designs, LLC v. Wilhelm · No. 7:23-cv-11307
- Philip Halpern
- June 24, 2024
Background
The parties, through counsel, requested a protective order under Federal Rule of Civil Procedure 26(c). They sought protection for nonpublic and competitively sensitive information that might be disclosed during discovery. The court stated that good cause existed for an appropriately limited confidentiality order governing the pretrial phase of the case. The opinion does not address the merits of the parties’ underlying claims.
Protective-order terms
The order covers discovery material designated either “Confidential” or “Highly Confidential—Attorneys’ Eyes Only.” A producing party may designate material as confidential when it reasonably and in good faith believes the material includes categories such as previously undisclosed financial information, nonpublic business ownership information, business or marketing plans, personal information, legally protected information, confidential research or commercial information, or information received from a third party in confidence.
A producing party may use the more restrictive “Highly Confidential—Attorneys’ Eyes Only” designation for nonpublic commercial or competitive information whose disclosure could harm the producing party. Protected material may be used only to prosecute or defend this case and any appeals, not for business, commercial, or competitive purposes.
The order limits disclosure of confidential material to specified recipients, including the parties and certain insurers, counsel and their staff, litigation vendors, mediators or arbitrators, people identified on a document, potential witnesses, experts and specialized consultants, deposition stenographers, and the court. Before confidential material is disclosed to certain witnesses, mediators, arbitrators, or experts, those individuals must receive the order and sign a nondisclosure agreement.
Highly confidential material may be disclosed only to specified qualified recipients, including litigation counsel and staff, vendors, mediators or arbitrators, document authors or recipients, experts, stenographers, and the court, as well as any other recipients designated by the court in the interests of justice. Recipients must take precautions against unauthorized or accidental disclosure.
Challenges, court filings, and privilege
A party may object to a confidentiality designation before trial by giving written notice stating the grounds for the objection. If the parties cannot promptly resolve the dispute, they must bring it to the court under the judge’s individual practices, and the producing party bears the burden of defending its designation.
The order does not decide whether evidence is admissible at trial, waive objections to discovery, or waive attorney-client privilege or work-product protection. Parties filing protected material with the court must publicly file a redacted version and file the unredacted version under seal. The court retains discretion over whether material should remain confidential and warned that it is unlikely to seal material introduced as evidence at trial without the required findings.
If privileged or work-product-protected information is inadvertently disclosed, the disclosure does not itself waive the protection. The receiving party must return or destroy the material within five business days after notification 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 retains the burden of establishing that the material is privileged or protected.
Disposition and continuing effect
The court ordered all persons subject to the protective order to comply with its terms, subject to contempt sanctions for violations. Within 60 days after final disposition of the case, including appeals, recipients generally must return or destroy protected material and certify that they have retained no copies or summaries. Counsel specifically retained for the case may keep archival copies of specified litigation materials, but those copies remain subject to the order.
The order survives termination of the litigation. The court retains jurisdiction as needed to enforce the order and impose sanctions for contempt. Judge Philip M. Halpern signed the order as “SO ORDERED.”
Read the full 11-page opinion on CourtListener, the free public archive maintained by the Free Law Project.