McDermott v. Sing Tao Newspapers New York LTD.

Background

The parties, through counsel, jointly requested 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 court found good cause for an appropriately limited confidentiality order covering the pretrial phase of the case.

Order’s requirements

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

The producing party must mark protected material as “Confidential” and provide a public-use copy with the confidential information redacted, subject to special procedures for deposition transcripts and exhibits. A party may correct an earlier failure to designate material by giving written notice and providing replacement versions within two business days.

The order permits disclosure of confidential material to listed recipients, including the parties, certain insurers and their counsel, case counsel and assigned support staff, outside vendors, mediators or arbitrators, people identified as document recipients, certain witnesses, experts and specialized advisers, deposition transcription staff, and the court. Witnesses, experts, mediators, and arbitrators generally must first receive the order and sign a nondisclosure agreement.

Limits and enforcement

The order does not waive objections to discovery, privilege, or other protections, and it does not decide whether evidence is admissible at trial. The court did not determine that any particular material is actually confidential and retained discretion over whether to give confidential treatment to designated material. The order states that the court is unlikely to seal material introduced at trial merely because it was previously designated confidential.

Parties challenging a confidentiality designation or seeking additional restrictions must give written notice describing the grounds. Unresolved disputes are to be brought to the court under its individual rules. Confidential material may be used only for prosecuting or defending this action and related appeals. A party responding to a subpoena or other compulsory legal process must give notice to the producing party when reasonably possible and, if time allows, at least 10 days before disclosure.

Recipients must take precautions against unauthorized or accidental disclosure. Within 60 days after the final disposition of the case, including appeals, recipients generally must return or destroy the confidential material and certify that they have not kept copies or summaries. Attorneys specifically retained for the case may keep archival copies of specified case materials, but those copies remain subject to the order. The order continues after the litigation ends, and the court retains jurisdiction to enforce it and impose contempt sanctions.

Disposition

The court ordered the parties and other persons covered by the order to comply with the stipulated confidentiality agreement and protective order. The document identifies the signing judge as United States Magistrate Judge Henry J. Ricardo.