Mitchem, Jr. v. New York University
- Katharine Parker
- 1:23-cv-07320
- U.S. District Court · Southern District of New York
- 6
Mitchem v. New York University: Judge Parker entered a protective order governing confidential discovery and inadvertent privileged disclosures.
The plaintiff, New York University, the listed defendants, their counsel and representatives, experts, consultants, witnesses, third parties providing discovery, and others with actual or constructive notice of the protective order.
What happened
In Mitchem, Jr. v. New York University, the parties agreed to rules protecting certain discovery materials from disclosure during the case. The order covers proprietary and financial information, medical records, and some employment-investigation records.
The order limits who may receive confidential materials, requires redacted public copies of court filings, and sets procedures for handling accidentally disclosed privileged information. It also states that the court has not yet decided whether any particular document is confidential and does not automatically authorize filing documents under seal.
Judge Katharine Parker ordered the parties and others covered by the order to follow these requirements, with possible contempt sanctions for violations. The order remains effective after the case ends for purposes including returning or destroying confidential materials and enforcing the order.
The detailed version
- Mitchem, Jr. v. New York University · No. 1:23-cv-07320
- Katharine Parker
- Aug. 27, 2024
Background
The parties stipulated to a protective order governing discovery in this action. The court found good cause for an appropriately limited confidentiality order covering the pretrial phase.
Protective-order terms
The order defines “Discovery Material” as information provided in discovery and permits the producing person to designate as “Confidential” only specified categories, including previously undisclosed proprietary or financial information, individual salary and compensation records of nonparties, medical records, and records concerning allegations or investigations that have not resulted in employment actions. A producing person may also seek confidential treatment for another category if the court later gives it that status.
People covered by the order generally may not disclose designated confidential material except to listed recipients, including the parties, counsel and their litigation staff, certain people identified on documents, qualified witnesses and experts who sign a nondisclosure agreement, deposition stenographers, and the court and its personnel. Recipients must take precautions against unauthorized or accidental disclosure.
The order establishes procedures for challenging a confidentiality designation or requesting additional restrictions. If the parties cannot resolve the dispute, they must bring it to the court under its individual rules.
Court filings and sealing
The order states that confidential discovery material filed with the court, and filings that reveal it, are to be filed under seal until further court order, while requiring a publicly filed redacted copy. It also warns that the court is unlikely to keep confidential material that is introduced at trial and retains discretion over confidentiality when material is submitted in connection with a motion or other proceeding.
The court specifically clarified that it had not reviewed the documents and made no finding that any document was actually confidential. Any such determination would occur through document-by-document review, subject to the presumption favoring public access to judicial documents. The court therefore did not approve provisions that would let the parties file documents under seal without a prior court order.
Inadvertent disclosure and duration
If privileged or attorney-work-product material is accidentally disclosed, the order provides that the disclosure does not waive the protection. After receiving notice, the receiving party must stop reviewing the material, return or destroy it within five business days, and provide counsel’s certification. The disclosing party must then provide a privilege log, although the receiving party may ask the court to order production. The disclosing party retains the burden of proving that the material is privileged or protected.
The order survives termination of the litigation. Within 30 days after final disposition, confidential discovery material must be returned or destroyed unless the producing person permits otherwise. The court retains jurisdiction to enforce the order and impose contempt sanctions.
Ruling
Judge Katharine Parker ordered the parties and other covered persons to follow the stipulated protective-order terms, subject to the court’s clarification that confidentiality and sealing decisions require the court’s review and prior order where applicable. The order did not decide the merits of the underlying dispute or make a document-by-document finding of confidentiality.
Read the full 6-page opinion on CourtListener, the free public archive maintained by the Free Law Project.