Knower v. Mount Sinai Health Systems, Inc.

Background

The parties, through counsel, jointly 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 found good cause for issuing a tailored confidentiality order governing the pretrial phase of the action.

Confidentiality designations

The order permits a producing party to designate as confidential only material that it reasonably and in good faith believes includes certain previously undisclosed information. The listed categories include financial information; information about ownership or control of a nonpublic company; business, product-development, or marketing plans; personal or intimate information about an individual; and other categories that the court later gives confidential status.

A producing party generally must clearly mark the protected material and provide a version with the confidential information redacted for future public use. Deposition testimony may be designated during the deposition or within 30 days afterward. During that 30-day period, the entire deposition transcript must be treated as confidential. A producing party may also correct an earlier failure to designate material by giving written notice and providing replacement versions within two business days.

Permitted disclosures and use

People subject to the order may disclose confidential discovery material only to specified recipients. These include the parties and their insurers; counsel and their assigned support staff; outside vendors working on the matter; mediators or arbitrators; persons identified as recipients of a document; potential witnesses; experts and other specialized advisers; deposition stenographers; and the court and its personnel.

Before confidential material is disclosed to a mediator or arbitrator, potential witness, or expert or specialized adviser, that person must receive the order and sign the required nondisclosure agreement. Recipients may use the material only to prosecute or defend this action and any appeals, not for another lawsuit or proceeding. The order does not waive objections to discovery, privilege, or objections to admissibility at trial.

Court filings, objections, and enforcement

A party filing confidential discovery material with the court must publicly file a redacted version and file the unredacted version under seal in accordance with the court's rules. A party seeking sealing must submit an application and supporting declaration that justify sealing on a particularized basis. The order states that the court has not itself determined that any designated material is confidential and may decline to seal material introduced at trial.

A party may object to a confidentiality designation before trial by written notice explaining the grounds. Parties may also request additional disclosure limits, such as attorneys'-eyes-only treatment, by written notice. Unresolved disputes are to be presented to the court under its individual practices.

Within 60 days after final disposition of the action, including appeals, recipients generally must return or destroy confidential material and certify that they have not retained copies or other reproductions. Counsel specifically retained for the action may keep archival copies of specified case files and work product, but those copies remain subject to the order. The order continues after the litigation ends, and the court retains jurisdiction to enforce it or impose contempt sanctions.

Disposition

Judge Gregory H. Woods entered the stipulated confidentiality and protective order. The opinion does not decide the underlying claims or defenses in the case.