Doe v. Kimmel

Nature of the Order

The parties—Jane Doe, Brett Kimmel, and the New York City Department of Education—stipulated to a protective order under Federal Rule of Civil Procedure 26(c). A protective order controls the handling of sensitive information exchanged during discovery and used in court proceedings. Judge Jesse Furman approved the stipulation as an order.

The opinion states that the court had previously allowed Jane Doe to proceed under a pseudonym because of the highly sensitive and personal nature of the case.

Information Covered

The order allows a party to designate documents as “Confidential” by marking them clearly or, when that is not feasible, identifying them by title or Bates number in writing. “Confidential Materials” include:

- Medical and mental-health records; - Financial records, including tax, bank, property, corporate, and trust records; - Materials containing Jane Doe’s legal name or the names of her family members; - Disclosures by nonparties that they experienced sexual abuse or sexual assault; and - Information concerning emotional, psychological, or interpersonal damages arising from the case.

Personal identifying information—defined as an address, telephone number, email address, social-media handle, or Social Security number—must be designated “Attorneys’ Eyes Only.” The order generally limits that information to counsel, their associated professional staff, and retained experts. Documents prepared by counsel or experts must have personal identifying information redacted before being shown to a party.

Permitted Disclosure and Confidentiality Disputes

Confidential Materials may be disclosed only to specified people, including the parties and litigation personnel, counsel and their staff, certain litigation vendors, the court and its personnel, deposition personnel, witnesses when reasonably necessary for testimony or preparation, and retained or specially employed experts. Before disclosure to a witness or expert, the person must receive the order and sign a written agreement to be bound by it, subject to the order’s provisions concerning non-testifying experts and consultants.

A party disputing a confidentiality designation must provide written notice no later than 30 days before discovery closes. The parties must first try to resolve the dispute informally. If they cannot, the party asserting confidentiality must seek court relief within the stated deadlines; otherwise, the designation is waived. The party asserting confidentiality bears the burden of showing that the designation is proper.

Court Filings and Other Provisions

A party intending to file papers that include or reveal Confidential Materials must notify the other party and confer about redactions or public filing. If the parties do not resolve the issue, the party asserting confidentiality—or, if both assert confidentiality, the party seeking to file—must ask the court for permission to file under seal within seven days. The materials may not be publicly filed while that request is pending.

The order also provides that deposition testimony revealing Confidential Materials is treated as confidential, that inadvertent production of privileged or otherwise protected material does not waive the protection, and that the parties may use their own materials outside the litigation when no other party has designated them confidential. Within 60 days after final termination of the litigation by settlement or completion of appeals, Confidential Materials generally must be returned or destroyed, subject to limited retention of work product and litigation records with safeguards. The confidentiality obligations continue after the case ends.

Court’s Limitation and Disposition

Judge Jesse Furman emphasized that the court had not reviewed the documents covered by the stipulation and therefore made no finding that any document is confidential. Whether a document qualifies for confidential treatment must be decided, if necessary, document by document, subject to the presumption that judicial documents are publicly accessible. The court also stated that it did not approve any provision allowing the parties to file documents under seal without a prior court order.

The court’s action was entry of the stipulated protective order, with that limitation regarding sealed filings. The order did not decide the underlying claims or the confidentiality of any particular document.