Securities and Exchange Commission v. Feller

Background

The Securities and Exchange Commission, Paul Feller, and Icaro Media Group, Inc. were beginning discovery and agreed to a proposed protective order. The court entered the order based on the parties’ representations and agreement.

What the Order Covers

The order applies to documents and information exchanged during discovery, including initial disclosures, discovery responses, deposition testimony and exhibits, other materials that may warrant restricted disclosure, and information derived directly from those materials.

It defines “Privacy Information” to include certain Social Security or taxpayer identification numbers, birth dates, names of known minors, and financial account numbers, except where only limited portions of that information appear. Parties generally may not use or disclose Privacy Information obtained through discovery except to litigate the case, subject to stated exceptions. Those exceptions include disclosures required by law or permitted under the Commission’s Form 1662, information obtained independently of discovery, and use in this case at filings, trial, depositions, hearings, or other proceedings. The order also preserves the parties’ obligations under the district’s privacy rules.

If a party accidentally discloses information protected by attorney-client privilege or the work-product doctrine, the disclosure does not automatically waive that protection. The receiving party must return or destroy the material within five business days after a claim of accidental disclosure and provide counsel’s certification. The disclosing party must then provide a privilege log within five business days after notification that the material was returned or destroyed. The receiving party may ask the court to require production, and the disclosing party retains the burden of showing that the material is privileged or protected.

The order also limits defendants’ use of certain documents produced to the Commission by third parties and marked as requesting confidential treatment: those documents may be used only in connection with this action. The order binds the parties, their counsel, and other people covered by its terms once entered.

Court’s Clarifications and Ruling

The court expressly stated that entering the order was not a judicial determination that any document or information was protected under Federal Rule of Civil Procedure 26(c) or another legal standard. The court had not reviewed the referenced documents and said any confidentiality decision would be made, if at all, on a document-by-document basis, subject to the presumption favoring public access to judicial documents.

Judge Jesse M. Furman entered the protective order but did not so-order any provision that purported to let the parties file documents under seal without a prior court order. The opinion is therefore a discovery-related procedural order, not a ruling on the merits of the Commission’s claims or on whether particular documents are confidential.