The Leukemia & Lymphoma Society v. The Walter and Eliza Hall Institute of…

Background

The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c). They sought protection for nonpublic and confidential material likely to be exchanged during discovery. The court found good cause for an appropriately tailored confidentiality order governing the pretrial phase of the action.

Order

The order governs the parties, their representatives and agents, experts, consultants, and nonparties providing discovery. A producing party may designate material as confidential when it reasonably and in good faith believes the material includes confidential research, technical, commercial, or financial information; information subject to a contractual confidentiality duty; information protected from disclosure by statute; personally identifiable information; or another category agreed to by the parties or given confidential status by the court.

Recipients generally may disclose confidential discovery material only to specified people, including the parties and their counsel, litigation vendors, mediators or arbitrators, certain document recipients, witnesses, experts, and the court. Certain recipients must first receive the order and sign a nondisclosure agreement. Confidential material may be used only to prosecute or defend this action and related appeals, not for business, commercial, competitive, or other litigation purposes.

The order establishes procedures for correcting an inadvertent failure to designate material as confidential and for objecting to or seeking additional confidentiality restrictions. It also addresses sealed court filings, requiring public redacted versions and compliance with the Southern District of New York’s electronic filing rules and the court’s individual practices. The court may later modify sealing protections if the public’s right of access outweighs the asserted confidentiality interests.

The order includes a process for clawing back documents or information protected by attorney-client privilege or work-product protection. After receiving a claw-back notice, the recipient generally must stop reviewing or sharing the material and return or destroy it within three business days, while specified procedures govern privilege challenges and any motion seeking disclosure.

The order also provides that confidential material must be securely maintained, requires steps to address data breaches, extends protections to nonparties producing discovery, and treats specified materials from an earlier American Arbitration Association proceeding as produced in this action without resolving their discoverability, relevance, admissibility, or confidentiality. After final disposition, recipients generally must return or destroy confidential material within 60 days, subject to the order’s provision allowing counsel to retain archival copies.

Disposition

The parties stipulated and agreed to the protective order. Judge Naomi Reice Buchwald ordered it, stated that the court would retain jurisdiction to enforce its obligations, and provided that it replaces the stipulated protective order dated August 10, 2023.