Gimbel v. American Express

Background

The parties jointly asked the U.S. District Court for the Southern District of New York to enter a protective order under Federal Rule of Civil Procedure 26(c). They sought protection for nonpublic and competitively sensitive information that might be disclosed during discovery. The order states that the court found good cause for an appropriately limited confidentiality order covering the pretrial phase of the case.

What the Order Requires

A producing party may designate only portions of discovery material that it reasonably and in good faith believes contain protected information. The listed categories include previously undisclosed financial information; information about ownership or control of a nonpublic company; business plans, product-development information, and marketing plans; personal or intimate information about an individual; and other categories that the court later gives confidential status.

People subject to the order may not disclose designated confidential discovery material except as the order allows. Permitted recipients include the parties and certain insurers; counsel and their assigned staff; outside vendors working on the case; mediators and arbitrators; specified people connected to a document; potential witnesses; experts and other specialized advisers; deposition transcription services; and the court and its personnel. Some recipients, including witnesses, experts, mediators, and arbitrators, must first receive the order and sign a nondisclosure agreement.

The materials may be used only to prosecute or defend this case and any appeals, not for another lawsuit or purpose. Recipients must take precautions against unauthorized or accidental disclosure. The order also allows disclosure in response to a lawful subpoena or other compulsory process, subject to notice to the producing party when reasonably possible and, if time allows, at least 10 days before disclosure.

Designations, Court Filings, and Challenges

The order sets procedures for marking confidential material and providing redacted copies for public use. Deposition testimony may be designated during the deposition or within 30 days afterward. During that 30-day period, the entire deposition transcript must be treated as confidential. A producing party may also correct an earlier failure to designate material by giving written notice and providing replacement copies within two business days.

A party may object to a confidentiality designation before trial by giving written notice stating the specific grounds. If the parties cannot promptly resolve the dispute, counsel must bring it to the court under the court’s individual practices. A party seeking additional restrictions, such as an attorneys’-eyes-only designation in extraordinary circumstances, must follow a similar procedure.

When confidential material is filed with the court, the parties must publicly file a redacted version and file the unredacted version under seal, along with the required application and supporting declaration justifying sealing on a particularized basis. The order warns that the court may unseal material if it cannot make specific findings that closure is essential and narrowly tailored. It also warns that confidential treatment is unlikely for material introduced into evidence at trial.

Limits of the Ruling and Disposition

The order does not waive objections to discovery, waive privilege or other protections, or decide whether any document, testimony, or other evidence is admissible. It also states that the court has made no finding that any discovery material is actually confidential and retains discretion to decide whether confidential treatment is appropriate.

Within 60 days after final disposition of the case, including appeals, recipients generally must return or destroy confidential discovery material and certify that they have not kept copies or other reproductions. Lawyers specifically retained for the case may keep archival copies of certain case-related materials, but those copies 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. The stipulated confidentiality agreement and protective order was ordered on May 13, 2025. The order’s signature block identifies Robyn F. Tarnofsky as the United States Magistrate Judge who signed the “SO ORDERED” portion, while the opinion text identifies Colleen McMahon as the district judge.