Arpesella v. The Bolivarian Republic of Venezuela

Background

The parties, through counsel, stipulated to 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 court found good cause for an appropriately limited confidentiality order governing the pretrial phase of the case.

The opinion does not identify the underlying claims or decide the parties’ ultimate legal rights.

Confidentiality Designations

The order defines “Discovery Material” as information of any kind produced or disclosed during discovery. A producing person may designate only the portion of material whose disclosure is restricted by law or could harm business, commercial, financial, or personal interests. 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 information; personal or intimate information about an individual; and other categories later given confidential status by the court.

For ordinary discovery materials, the producing person or counsel must clearly mark the protected portion. Deposition testimony may be designated on the record or by written notice identifying specific pages, lines, or exhibits within 30 days after the deposition. During that 30-day period, the entire deposition transcript is treated as confidential. Material produced without a designation may later be designated confidential before trial if the producing person notifies prior recipients in writing.

Limits on Disclosure and Use

People covered by the order may not disclose designated material except as the order permits. Permitted recipients include the parties, their insurers and insurers’ counsel; counsel and their litigation staff; litigation-support vendors; mediators or arbitrators; people identified on the face of a document as having received it; potential witnesses; experts and other specialized advisers; deposition stenographers; and the court and appellate courts with their personnel.

Some recipients, including certain vendors, mediators or arbitrators, witnesses, and experts, must first receive the order and sign the attached nondisclosure agreement. Confidential material may be used only to prosecute or defend this action and related appeals, not for business, commercial, competitive, or unrelated litigation purposes. The order does not restrict use of a person’s own documents or information, or information obtained independently of discovery.

Challenges, Subpoenas, and Court Filings

A party may object to a confidentiality designation before trial by giving written notice stating the grounds. A party seeking additional limits, such as an attorneys’-eyes-only restriction, must follow a similar process. Unresolved disputes are to be presented to the court under the judge’s individual rules.

If discovery seeks information subject to a third party’s confidentiality obligation, the receiving party must notify that third party within five business days. If neither the third party nor the receiving party seeks court relief within 21 days after notice, the information must be produced if responsive, although it may receive a confidentiality designation.

The order does not create an automatic right to file confidential material under seal. A party filing under seal must first submit a letter-motion explaining the basis for sealing, and the court retains discretion over whether to provide confidential treatment. Filings containing confidential material generally must include a public redacted version and a sealed unredacted version with proposed redactions identified. The order warns that the court is unlikely to seal material introduced as evidence at trial.

Privileges, Personal Information, and End of the Case

The order preserves objections to discovery, privileges, and protections, and does not decide whether evidence is admissible. If privileged or attorney-work-product material is accidentally disclosed, the disclosure does not waive the protection under the order. The receiving party must return or destroy the material within five business days after a claim of accidental disclosure and provide counsel’s certification. The disclosing party must then provide a privilege log, and the receiving party may ask the court to compel production. The disclosing party retains the burden of proving that the material is privileged or protected.

People receiving personally identifying information must keep it secure and confidential and promptly notify the producing person of any data breach. Within 30 days after final disposition of the action, confidential discovery material must be returned or destroyed, unless the producing person permits destruction instead of return, and the recipient must certify that no copies or summaries were retained. Counsel specifically retained for the action may keep archival copies of specified litigation materials, but those copies remain subject to the order.

Ruling

The parties’ agreement states that the order was stipulated and agreed. Judge Jeannette A. Vargas then ordered the parties and all other people covered by the order to comply. The order survives the end of the litigation, and the court retains jurisdiction as needed to enforce its terms or impose sanctions for contempt. The order does not resolve the merits of the case.