Carfora v. Teachers Insurance Annuity Association of America

Background

The parties, through their lawyers, jointly requested a protective order under Federal Rule of Civil Procedure 26(c). The order concerns nonpublic, commercially sensitive, competitively sensitive, personal, privileged, and otherwise protected information that may be exchanged during discovery. The court stated that good cause existed for a tailored confidentiality order governing the pretrial phase of the case.

Terms of the Order

The order defines “Confidential Discovery Material” as discovery information designated confidential by a producing party that reasonably and in good faith believes the information falls within specified protected categories. Those categories include trade secrets, proprietary business information, previously undisclosed financial information, business plans, certain regulatory materials, private personal information, and information protected by law or privilege.

People subject to the order generally may not disclose confidential material except to specified recipients. Those recipients include the named parties—John Carfora, Sandra Putnam, Juan Gonzalez, Teachers Insurance and Annuity Association of America, and TIAA-CREF Individual & Institutional Services LLC—their insurers and insurer counsel, counsel and litigation-support personnel, certain vendors, mediators or arbitrators, document authors and recipients, potential witnesses, experts, deposition stenographers, and the court. Several categories of recipients must first receive the order and sign a nondisclosure agreement.

Confidential material may be used only to prosecute or defend this case and related appeals, not for business, commercial, competitive, or other litigation purposes. The order does not waive objections to discovery, privilege, protection, immunity, or evidence admissibility. It also allows parties to object to confidentiality designations and requires the parties to meet and confer before bringing unresolved disputes to the court.

Court Filings and Privilege

A party seeking to file confidential material under seal or with redactions must follow the court’s individual practices. Redactions and sealing must be narrowly tailored and consistent with the presumption of public access to judicial documents. Confidential material submitted by another party is initially filed provisionally, and the designating party has three business days to seek permanent sealing or redaction.

Under Federal Rule of Evidence 502(d), an inadvertent disclosure of material claimed to be protected by attorney-client privilege, work-product protection, or another privilege or protection does not automatically waive that protection. The receiving party generally must return or destroy the material within five business days after notice, while the producing party must then provide a privilege log. The receiving party may ask the court to require production, but the producing party retains the burden of establishing that the material is protected.

Ruling and Effect

Judge Katherine Polk Failla entered the stipulated confidentiality and Rule 502(d) protective order on August 16, 2024. The order requires recipients to protect confidential material, generally requires its return or destruction after the case ends, and states that violations may be punished as contempt. The order also says the court retains jurisdiction to enforce obligations arising under it.

The text contains potentially inconsistent post-case provisions: the main order refers to a 60-day return-or-destruction period and says the order survives termination, while Exhibit A refers to 30 days, and a later statement says the agreement binds the parties only during the litigation. The summary above describes the main order’s provisions.