Roccaro v. Nasary

Background

The parties, through counsel, requested a protective order under Federal Rule of Civil Procedure 26(c) for non-public and confidential material expected to be exchanged during discovery. The court stated that the parties agreed to the proposed terms and represented that discovery would involve confidential documents or information whose public disclosure could harm the producing person or a third party owed a duty of confidentiality. Based on those representations, the court found good cause for a tailored confidentiality order and entered the proposal at ECF No. 43-1, after considering the parties’ positions in ECF Nos. 43 and 45.

What the Order Does

The order covers the parties, their representatives, agents, experts, consultants, third parties providing discovery, and other people with actual or constructive notice of the order. Protected discovery material is information produced or disclosed during discovery and designated either “Confidential” or “Attorneys’ Eyes Only.” Such material generally may not be disclosed except as the order permits.

A producing person may designate material “Confidential” when disclosure is restricted by law or would harm business, commercial, financial, or personal interests, including financial information, ownership or control information about a non-public company, business plans, marketing plans, proprietary information, trade secrets, and personal or intimate information. “Attorneys’ Eyes Only” is reserved for material whose disclosure is highly likely to cause substantial competitive harm and therefore requires greater limits on access.

The order identifies permitted recipients for each category. Confidential material may be shared with the parties and their insurers, counsel, certain litigation-support providers, mediators and arbitrators, authors and recipients identified on documents, potential witnesses, experts and consultants, stenographers, and the courts and court personnel identified in the order. Attorneys’ Eyes Only material may be shared with a narrower group, generally excluding the parties and insurers. Many recipients must first receive the order and sign a nondisclosure agreement.

The order permits a party to object to a confidentiality designation before trial. If the parties cannot resolve the dispute promptly, counsel must bring it to the court under the court’s individual rules. Protected material may be used only to prosecute or defend this action, in the identified Bronx Supreme Court dissolution matter involving Tasty Poultry, LLC and some of the parties, and in appeals; it may not be used for business, commercial, competitive, or unrelated litigation purposes.

Sealing, Privilege, and Personal Information

The order does not create an automatic right to file material under seal. A party seeking to file under seal must first submit a letter-motion explaining the basis for sealing, and the court retains discretion over confidential treatment of material submitted with motions or other proceedings. The order warns that the court is unlikely to seal or otherwise protect material introduced as evidence at trial without the required findings.

The order also states that inadvertent disclosure of information protected by attorney-client privilege or the attorney-work-product doctrine does not 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 a certification. The receiving party may ask the court to compel production, while the disclosing party retains the burden of establishing that the material is privileged or protected.

Personally identifying information exchanged in discovery must be kept secure and confidential. A recipient experiencing a data breach must immediately notify the producing person and cooperate in addressing the breach. The order also permits compliance with lawful subpoenas or other compulsory process, subject to notice to the producing person when permitted.

Duration and Disposition

The protective order remains binding after the litigation ends. Within 30 days after final disposition, protected discovery material and copies generally must be returned to the producing person or destroyed with written certification, unless the producing person permits destruction or another treatment stated in the order. Attorneys specifically retained for the case may keep archival copies of specified case materials, but those copies remain subject to the protective order. Willful violations may result in contempt of court, and the court retains jurisdiction to enforce the order and impose contempt sanctions.

Disposition

Judge Jennifer H. Rearden entered the protective order governing confidentiality and use of discovery materials. The opinion does not decide the underlying claims or defenses in the case.