Doe v. City of New York

Background

The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c). A protective order is a court order governing the handling and disclosure of information exchanged during discovery. The parties stated that they might need to disclose nonpublic and competitively sensitive information. Judge Woods found good cause for an appropriately limited order covering the pretrial phase of the case.

Confidential information

The order defines “Discovery Material” as information of any kind produced or disclosed during discovery. A producing party may designate only portions that it reasonably and in good faith believes include:

- previously undisclosed financial information; - previously undisclosed information about ownership or control of a nonpublic company; - previously undisclosed business, product-development, or marketing plans; - personal or intimate information about an individual; or - another category the court later gives confidential status.

The order requires confidential material to be marked appropriately. A producing party may later correct an inadvertent failure to designate material as confidential by notifying the other parties and providing replacement copies within two business days.

Who may receive confidential material

Confidential material may be disclosed only to people identified in the order, including the parties and their insurers, counsel and counsel’s support personnel, litigation vendors, mediators or arbitrators, certain people identified in a document, potential witnesses, experts and other specialized advisers, deposition transcription services, and the court and its personnel. Witnesses, experts, mediators, and arbitrators generally must first receive the order and sign the required nondisclosure agreement.

Recipients may use confidential material only to prosecute or defend this case and any appeals. The order does not restrict a party’s use of its own documents or information. It also permits production in response to a lawful subpoena or other compulsory legal process, subject to notice requirements described in the order.

Challenges and court filings

A party may object to a confidentiality designation before trial by giving written notice stating the specific grounds for the objection. If the parties cannot resolve the dispute, they must bring it to the court under the court’s procedures. A party seeking stronger limits on disclosure, such as an attorneys’-eyes-only designation, must follow a similar process.

When confidential discovery material is filed with the court, the parties must publicly file a redacted version and file the unredacted version under seal. A party seeking sealing must submit an application and supporting declaration providing a particularized justification. The order warns that the court may unseal material if it cannot make specific findings that sealing is essential and narrowly tailored. It also states that the court has made no final finding that any designated material is actually confidential and retains discretion concerning confidential treatment, particularly for material introduced at trial.

Duration and enforcement

Within 60 days after final disposition of the case, including appeals, recipients must return or, with the producing party’s permission, destroy confidential material and certify that they have not kept copies or other reproductions. Counsel specifically retained for the case may keep certain archival litigation files, but those files remain subject to the order. The order continues after the litigation ends, and the court retains jurisdiction to enforce its obligations and impose contempt sanctions.

Ruling

Judge Woods entered the parties’ stipulated confidentiality agreement and protective order. The order governed discovery and confidentiality issues; it did not decide the underlying claims, the admissibility of evidence, or whether any particular material ultimately deserved sealing.