Everett v. New York City Department of Education

Nature of the Order

This is a stipulated protective order under Federal Rule of Civil Procedure 26(c). The parties, through counsel, requested confidentiality protections for certain non-public materials that would be exchanged during discovery. The court found good cause to issue a tailored order for the pretrial phase of the action.

Confidential Discovery Material

The order defines “Discovery Material” as information produced or disclosed during discovery. A producing person may designate material “Confidential” only when its public disclosure is restricted by law or, in the producing person’s good-faith judgment, would harm business, commercial, financial, governmental, personal, privacy, or proprietary interests. Examples include previously undisclosed financial information, information about non-public companies, business or marketing plans, trade secrets, sensitive governmental information, and personal or intimate information.

The order does not impose additional confidentiality duties on information already public, already possessed by the receiving party in the form produced, properly known to the receiving party, or obtained from another rightful source on a non-confidential basis.

Limits on Disclosure and Use

People subject to the order may not disclose confidential discovery materials except as the order permits. Permitted recipients include the parties and certain insurers, counsel and their litigation staff, litigation-support vendors, mediators or arbitrators who sign a non-disclosure agreement, persons identified on a document, potential witnesses who sign an agreement, experts or specialized consultants who sign an agreement, deposition stenographers, and the court and its personnel.

Recipients may use confidential discovery materials only to prosecute or defend this action and any related appeals. They may not use the materials for business, commercial, competitive, or other litigation purposes. The order does not restrict a person’s use of that person’s own documents or information, or information obtained independently outside the discovery process.

Challenges, Court Filings, and Compelled Disclosure

A party may object to a confidentiality designation before trial. If the parties cannot resolve the objection, they must present the dispute to the court under the judge’s individual rules. A party may also request additional limits, such as an attorneys’-eyes-only restriction, through the same process.

The order does not create an entitlement to file confidential materials under seal. A party seeking to do so must file a letter-motion explaining the basis for sealing, and the court retains discretion over whether to grant confidential treatment. Public redacted and sealed unredacted versions are required for confidential court submissions. The order also states that the court is unlikely to seal materials introduced as evidence at trial.

The order permits disclosure when required by a public-records request, subpoena, other compulsory process, law, or a government agency. The person receiving such a demand must notify the producing person before disclosure when possible, including at least 10 days beforehand if the time allowed permits it.

Privilege, Personal Information, and Enforcement

An inadvertent or other disclosure of information claimed to be protected by attorney-client privilege, work-product protection, or another privilege does not waive that protection under the order. The receiving party must return or destroy the information within five business days after a claim is made, and the producing party must provide a privilege log within five business days after certification of return or destruction. The receiving party may ask the court to compel production, and the producing party retains the burden of establishing the claimed protection.

Personally identifying information, including Social Security numbers, financial account numbers, passwords, and information usable for identity theft, must be kept secure and confidential. A recipient experiencing a data breach must immediately notify the producing person and cooperate in addressing it. Unauthorized disclosures must be reported within five days after discovery, followed by efforts to prevent further disclosure and obtain return or destruction of the material.

The order remains effective after the litigation ends. Within 30 days after final disposition, confidential discovery materials generally must be returned or destroyed, with written certification. Attorneys specifically retained for the parties may keep archival copies of specified litigation materials, but those copies remain subject to the order. Willful violations may lead to contempt sanctions, and the court retains jurisdiction to enforce the order.

Disposition

Judge John P. Cronan ordered the stipulated protective order on July 8, 2024. This order governs discovery confidentiality and does not resolve the underlying claims.