Liederbach v. NYU Langone Hospitals

Background

The parties asked the court to enter a protective order under Federal Rule of Civil Procedure 26(c) because discovery was expected to involve confidential documents or information. The parties agreed to the order’s terms, and the court found good cause to issue a tailored confidentiality order for the pretrial phase of the case.

Confidentiality Designations

The order does not protect every discovery disclosure. A producing person may designate as confidential only material whose public disclosure is restricted by law or could harm business, commercial, financial, or personal interests, or the interests of a third party that is owed a duty of confidentiality. Listed examples include previously undisclosed financial information; information about ownership or control of a nonpublic company; business, product-development, or marketing plans; and personal or intimate information about an individual. The court may also give other information confidential status.

The producing person or counsel generally must mark the protected material as “Confidential.” Deposition testimony may be designated during the deposition or by written notice identifying the relevant pages, lines, or exhibits within 30 days after the deposition. During that 30-day period, the entire deposition transcript is treated as confidential. Previously produced material may also receive a confidentiality designation before trial if the producing person later determines that it should have been designated.

Permitted Disclosures and Use

People subject to the order may disclose confidential discovery material only to specified recipients, including the parties and their insurers; counsel and assigned support staff; certain litigation vendors; mediators or arbitrators; people identified as recipients of a document; certain witnesses; experts and other advisers; deposition reporters; and the court and its personnel. Some recipients must first receive the order and sign the attached nondisclosure agreement. The signed agreements must be retained by counsel and produced to opposing counsel before the person testifies or at the end of the case, whichever comes first.

Recipients may use confidential discovery material only to prosecute or defend this action and any 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 documents or information, or information obtained independently of discovery. It also permits disclosure in response to lawful compulsory process, subject to notice to the producing person when reasonably possible.

Challenges, Sealing, and Privilege

A party may object to a confidentiality designation before trial by serving written notice that explains the grounds. A party may also request additional limits, such as an “attorneys’ eyes only” restriction, through the procedure specified in the order. If the parties cannot resolve the dispute, they must bring it to the court under the judge’s individual rules.

The order states that confidential discovery material is not automatically eligible for filing under seal. A party seeking to file material under seal must first submit a letter-motion explaining the basis for sealing, and the court retains discretion over whether to grant confidential treatment. Publicly filed versions of confidential submissions must be redacted, while unredacted versions with proposed redactions highlighted must be filed under seal. The order warns that the court is unlikely to seal or otherwise protect material introduced as evidence at trial.

The order also provides that an inadvertent disclosure of material claimed to be protected by attorney-client privilege or attorney work-product protection does not itself waive that protection. After a claim of inadvertent disclosure, the receiving party generally must return or destroy the material within five business days and provide counsel’s certification. The disclosing party must then provide a privilege log, while the receiving party may ask the court to compel production. The disclosing party retains the burden of establishing that the material is privileged or protected.

Duration and Enforcement

The protective order remains effective after the litigation ends. Within 30 days after 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 case may keep archival copies of specified case and work-product materials, but those copies remain subject to the order.

The court retained jurisdiction over people subject to the order as necessary to enforce its obligations or impose sanctions for contempt. The order applies to the parties, their representatives, agents, experts, consultants, third parties providing discovery, and other interested people with actual or constructive notice of it.