Cherner v. CF Bankshares Inc.

Nature of the Order

The court entered a stipulated confidentiality agreement and protective order under Federal Rule of Civil Procedure 26(c). The parties, through counsel, requested protection for nonpublic and competitively sensitive information that might be disclosed during discovery. The court found good cause for an appropriately limited order covering the pretrial phase of the action.

Confidential Information

A producing party may designate as “Confidential” only material that it reasonably and in good faith believes includes previously undisclosed financial information, ownership or control information about a nonpublic company, business or marketing plans, personal or intimate information, or another category the court later protects. The order provides procedures for marking confidential material and producing redacted copies for public use. Deposition testimony and exhibits may be designated during the deposition or within 30 days afterward; during that 30-day period, the entire transcript must be treated as confidential.

A producing party may also correct an earlier failure to designate information by notifying prior recipients in writing before trial. The order states that confidentiality designations do not waive objections to discovery, privilege, or other protection, and do not decide whether evidence is admissible at trial.

Who May Receive the Information

Confidential discovery material may be disclosed to the parties and their insurers, counsel and litigation-support personnel, outside vendors assisting counsel, mediators or arbitrators, certain people identified in a document, possible witnesses, experts and specialized advisers, deposition stenographers, and the court and its personnel. Witnesses, experts, mediators, and arbitrators must first receive the order and sign the required nondisclosure agreement. Counsel must retain those agreements and provide them to opposing counsel before the person testifies or when the case ends, whichever comes first.

Recipients may use confidential material only to prosecute or defend this action and related appeals. They may not use it for business, commercial, competitive, or other litigation purposes. The order does not restrict a party’s rights concerning its own documents or information.

Court Filings and Disputes

A party filing confidential material with the court must publicly file a redacted version and file the unredacted version under seal, along with required courtesy copies. A party seeking sealing must submit a letter brief and supporting declaration explaining specifically why continued sealing is justified. The court retains discretion over whether to keep confidential material under seal when it is submitted in connection with a motion or other proceeding, and the order warns that material introduced at trial is unlikely to remain sealed.

Parties may object to confidentiality designations or request additional disclosure limits before trial. If they cannot resolve the dispute, they must present it to the court under the court’s individual practices.

Privilege, Return, and Enforcement

An inadvertent disclosure of attorney-client privileged or attorney work-product material does not waive the claimed protection under the order. After receiving notice, the recipient must return or destroy the material within five business days and provide counsel’s certification. The disclosing party must then provide a privilege log within five business days. The receiving party may ask the court to order production, and the disclosing party retains the burden of establishing privilege or protection.

Within 60 days after final disposition of the action, including appeals, recipients must return or, with the producing party’s permission, destroy confidential material and certify that they have retained no copies or other reproductions. Counsel specifically retained for the action may keep an archival copy of specified case files and work product, 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.

Disposition

Judge Philip M. Halpern signed and ordered the stipulated protective order. This was a discovery and confidentiality order, not a decision on the merits of the parties’ claims.