Hreish v. Pappas

Background

The parties, acting through counsel, jointly requested a protective order under Federal Rule of Civil Procedure 26(c). That rule allows a court to limit discovery to protect a person from harm, including harm from disclosure of confidential information. The parties represented that discovery would involve confidential documents or information whose public disclosure could harm the producing person or a third party owed a duty of confidentiality.

The court found good cause for an appropriately limited confidentiality order covering the pretrial phase of the action. The order states that it does not provide blanket protection for all discovery responses or disclosures. It also does not establish that confidential information may be filed under seal.

Terms of the Order

The order applies to the parties, their representatives, agents, experts, consultants, third parties providing discovery, and other interested persons with actual or constructive notice of the order. A person receiving discovery material designated “Confidential” generally may not disclose it except as the order permits.

A producing person may designate only information whose disclosure is restricted by law or would harm business, commercial, financial, or personal interests. The listed categories include previously undisclosed financial information; previously undisclosed information about ownership or control of a non-public company; previously undisclosed business, product-development, or marketing information; personal or intimate information about an individual; and other categories later given confidential status by the court.

The order sets procedures for designating documents and deposition testimony. Deposition testimony may be designated during the deposition or within 30 days after the deposition ends. During that 30-day period, the entire transcript is treated as confidential. A producing person may also later designate material that was initially produced without a confidentiality designation.

Confidential material may be disclosed to specified recipients, including the parties and their insurers; counsel and litigation-support staff; certain vendors; mediators and arbitrators; people identified on a document; potential witnesses; experts and specialized advisers; deposition stenographers; and the court and related personnel. Some recipients must first receive the order and sign a nondisclosure agreement. Counsel must retain those agreements and produce them to opposing counsel either before the person testifies or at the end of the case, whichever occurs first.

A party may object to a confidentiality designation or request additional restrictions, such as an attorneys’-eyes-only designation, by written notice. If the parties cannot resolve the dispute, they must present it to the court under the court’s individual rules. The order also provides procedures when discovery is subject to a third party’s confidentiality obligations.

Use, Sealing, and Privilege

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

A person may disclose confidential material in response to a lawful subpoena or other compulsory legal process, but generally must notify the producing person before disclosure and, if time permits, at least 10 days beforehand. A party filing confidential material with the court must publicly file a redacted version and simultaneously file an unredacted version under seal with proposed redactions highlighted. The court retains discretion over whether to keep material confidential and warns that confidential discovery material is unlikely to remain sealed if introduced as trial evidence.

The order requires secure handling of personally identifying information, such as Social Security numbers, financial account numbers, passwords, and information that could be used for identity theft. It also provides that an inadvertent disclosure of attorney-client privileged or attorney-work-product material does not waive the protection. After a claim of inadvertent disclosure, the receiving party must return or destroy the material within five business days, subject to procedures allowing a motion to compel production and possible court review.

Duration and Disposition

The protective order continues after the litigation ends. Within 30 days after the final disposition, recipients must return or, with the producing person’s permission, destroy confidential discovery material and certify that they have not retained copies or other reproductions. Counsel specifically retained for the action may keep an archival copy of specified case materials, but those copies remain subject to the order. Willful violations may result in contempt of court, and the court retains jurisdiction to enforce the order and impose contempt sanctions.

Disposition

The court issued and ordered the parties’ stipulated protective order. This opinion does not decide the underlying claims or defenses in Hreish v. Pappas.