Sabic-El-Rayess v. Teachers College, Columbia University

Background

The parties jointly submitted a stipulation and proposed order governing confidential information produced by either party or by non-parties during discovery. The order is intended to facilitate the exchange of documents and testimony that the parties believe should receive confidential treatment.

Terms of the Order

Either party may designate documents, discovery responses, deposition testimony, or other testimony as “Confidential” through markings, statements on the record, written notice, or another appropriate method. Unless the parties agree otherwise, deposition testimony is treated as confidential for 14 days after receipt of the official transcript. Documents produced by a non-party may also be designated, generally within 14 days after counsel receives copies.

The definition of confidential information includes material whose disclosure could invade the privacy of current or former employees, including personal health information, trade secrets, intellectual property, proprietary or competitive information, research, student information, financial information, salary information, and other confidential employment information. It also includes information that the designating party reasonably and in good faith believes could harm the party, its business or institution, or its employees, vendors, customers, or clients if disclosed.

Confidential information may be used only for this litigation. The order permits disclosure to specified recipients, including the parties; personnel involved in preparing the case; counsel and their litigation staff; retained experts and consultants; the Court and its personnel when permitted; deposition, hearing, and trial personnel; certain witnesses; people who created, received, or produced the information; mediators; and other people approved in writing by the parties or ordered by the Court. Experts, witnesses, and consultants generally must sign a written agreement to follow the order before receiving confidential information.

The parties may challenge confidentiality designations. If they cannot resolve a challenge, the producing party must ask the Court for a protective order or follow the Court’s established procedures, and the material remains treated as confidential while the dispute is pending. The order also provides procedures for inadvertently produced confidential or privileged material, including notice, return or destruction of certain materials, and preservation of copies needed to challenge a privilege claim.

Filing Under Seal and Continuing Duties

A party seeking to file material containing confidential information must follow Court procedures. If no specific procedures apply, the party must take steps to protect the information, including filing it under seal when appropriate. The order does not eliminate the need for a prior court order before filing documents under seal. Confidentiality obligations generally continue after the litigation ends, and, after final termination, the producing party may request return or destruction of confidential information, subject to listed exceptions for counsel’s work product and case materials.

Ruling

Judge Jesse Furman ordered the parties’ stipulation to bind them to treat designated documents and testimony as confidential under its terms. The Court expressly stated that it had not reviewed the referenced documents and therefore made no finding about whether any particular document was confidential. Any such determination would occur, if necessary, through document-by-document review under the Court’s rules and the presumption favoring public access to judicial documents. The Court did not so order any provision that purported to let the parties file documents under seal without a prior court order.