Paez v. Joseph Reed and Cowan Intermodal Group LLC

Background

The parties asked the court to enter a protective order under Federal Rule of Civil Procedure 26(c). They represented that discovery would involve confidential documents or information whose public disclosure could harm the person producing it or a third party owed a duty of confidentiality. The parties agreed through counsel to the order’s terms.

Order’s requirements

The order covers discovery material designated “Confidential.” A person who receives such material generally may not disclose it except as the order allows. A producing person may designate only material whose disclosure is restricted by law or that the producing person, in good faith, believes is eligible for protection under Rule 26(c).

Confidential material may be disclosed to listed categories of recipients, including the parties and their insurers, counsel and their staff, litigation-support vendors, mediators or arbitrators, certain persons identified in documents, potential witnesses, experts and other specialized advisers, deposition stenographers, and the court. Some recipients must first receive the order and sign a nondisclosure agreement. The order also permits disclosure when required by a lawful subpoena, compulsory process, law, or government agency, subject to notice to the producing person when possible.

The material may be used only to prosecute or defend this action and any appeals, not for business, commercial, competitive, or other litigation purposes. The order does not waive objections to discovery, privileges, or protections, and it does not decide whether evidence is admissible at trial.

Confidentiality disputes and court filings

A party may object to a confidentiality designation or request additional disclosure limits, including an attorneys’-eyes-only restriction in extraordinary circumstances. If the parties cannot resolve the issue, they must bring the dispute to the court under Rule 2.A of the court’s Individual Practices.

The order does not automatically authorize filing confidential material under seal. A party seeking to file such material must follow the court’s sealing procedures. The court retains discretion over whether to keep material confidential when it is submitted in connection with a motion or other proceeding and states that it is unlikely to seal material introduced as evidence at trial.

Personally identifying and privileged information

Recipients must securely maintain personally identifying information exchanged in discovery and promptly notify the producing person of a data breach. An inadvertent disclosure of attorney-client privileged or attorney-work-product material does not, under the order, waive the protection. After a claim of inadvertent disclosure, the receiving party must return or destroy the material within five business days and provide counsel’s certification. The producing party must then provide a privilege log, while the receiving party may ask the court to compel production. The producing party retains the burden of proving that the material is privileged or protected.

Duration and disposition

The order continues after the litigation ends. Within 30 days after final disposition, recipients must return or, with the producing person’s permission, destroy confidential discovery material and certify that they have not retained copies or other reproductions. Lawyers specifically retained for the case may keep archival copies of certain case-related materials, which remain subject to the order. The court retains jurisdiction to enforce the order and impose contempt sanctions for willful violations.

Disposition

Judge Gabriel W. Gorenstein found good cause and issued the protective order. The opinion does not decide the merits of the parties’ underlying dispute.