Pasternak v. HiSmile, Inc.
- Philip Halpern
- 7:24-cv-04445
- U.S. District Court · Southern District of New York
- 10
In Pasternak v. HiSmile, Inc., Judge Halpern approved a protective order governing confidential discovery and related disclosures.
The order binds the parties, their corporate parents, successors and assigns, representatives, agents, experts, consultants, third parties providing discovery, and others with actual or constructive notice. It governs access to and use of confidential discovery material in this action.
What happened
Pasternak v. HiSmile, Inc. concerns the parties’ agreement to protect nonpublic and competitively sensitive information exchanged during discovery. The plaintiff is Jonathan Pasternak, who brought the case for himself and others similarly situated, and the defendants are HiSmile Pty Ltd. and HiSmile, Inc.
The order limits who may receive information marked confidential and how recipients may use it. It covers specified financial, business, personal, and other information the court allows to be treated as confidential, while allowing objections and requiring special procedures for court filings, subpoenas, and accidentally disclosed privileged material.
The court ordered the confidentiality agreement and protective order on February 27, 2025. Judge Philip M. Halpern stated that the order would remain effective after the case ends and that the court would retain authority to enforce it.
The detailed version
- Pasternak v. HiSmile, Inc. · No. 7:24-cv-04445
- Philip Halpern
- Feb. 27, 2025
Background
The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c). The request concerned nonpublic and competitively sensitive information that might be disclosed during discovery. The court found good cause for a tailored confidentiality order governing the pretrial phase of the action.
Main Terms
The order permits a producing party to mark as confidential only material it reasonably and in good faith believes includes previously undisclosed financial information, information about ownership or control of a nonpublic company, business or product-development information, marketing plans, personal or intimate information, or another category the court later protects.
People subject to the order may disclose confidential discovery material only to specified recipients, including the parties and certain insurers, counsel and their staff, litigation vendors, mediators or arbitrators, certain people identified in documents, potential witnesses, experts, and the court. Mediators, arbitrators, witnesses, and experts must first receive the order and sign a nondisclosure agreement.
Confidential material may be used only to prosecute or defend this action and any appeals, not for business, competitive, commercial, or other litigation purposes. The order does not waive objections to discovery, privilege, or protection, and it does not decide whether evidence will be admissible at trial.
Sealing and Confidentiality Disputes
A party filing confidential material must publicly file a redacted version and file the unredacted version under seal. A party seeking to seal material must also submit a letter brief and supporting declaration explaining why continued sealing is justified. The court retains discretion over whether material submitted in connection with a motion or proceeding receives confidential treatment and stated that it is unlikely to seal material introduced at trial.
A party may object to a confidentiality designation or request additional disclosure limits, including attorneys’-eyes-only treatment in extraordinary circumstances. If the parties cannot promptly resolve the dispute, counsel must bring it to the court under the court’s individual practices.
Privilege and Return of Materials
If privileged or attorney-work-product material is accidentally disclosed, the disclosure does not waive the protection. After receiving notice, the receiving party must return or destroy the material within five business days and provide a certification. The producing party must then provide a privilege log, and the receiving party may ask the court to require production. The producing party retains the burden of showing that the material is privileged or protected.
Within 60 days after the final disposition of the action, including appeals, recipients must return or, with the producing party’s permission, destroy confidential discovery material and certify that they retained no copies or summaries. Counsel specifically retained for the action may keep archival copies of certain case materials, which remain subject to the order. The order survives the end of the litigation, and the court retains jurisdiction to enforce it and impose contempt sanctions.
Disposition
Judge Philip M. Halpern entered the stipulated confidentiality agreement and protective order. The opinion does not decide the parties’ underlying claims or defenses.
Read the full 10-page opinion on CourtListener, the free public archive maintained by the Free Law Project.