M.G. v. DARRYL C. TOWNS

Nature of the Order

The parties submitted an amended confidentiality stipulation and proposed protective order. A protective order is a court order controlling the handling and disclosure of sensitive information exchanged during discovery, the pretrial information-gathering process. The court found good cause under Federal Rule of Civil Procedure 26(c) and ordered that the stated restrictions and procedures apply to information, testimony, and documents produced by the parties and, when appropriate, nonparties.

Protected Information

The order defines personally identifying information as information from which an individual’s identity can reasonably be inferred directly or indirectly. Examples include Social Security numbers, financial-account numbers, passwords, and information that could be used for identity theft. The receiving party must keep this information secure.

“Confidential Material” includes covered documents from the records of M.G., J.M., the New York State Department of Corrections and Community Supervision, and the Board of Parole. The designation may cover information that could affect correctional or institutional safety or security, is confidential under state or federal law, or contains sensitive personal information concerning the parties, current or former employees, and currently or formerly incarcerated individuals. A party may also designate information as confidential when it is proprietary, a trade secret, or otherwise sensitive nonpublic information.

The order creates a more restrictive “Highly Confidential—Attorney’s Eyes Only” category. It includes specified investigative records, certain health-care, mental-health, labor-relations, and personnel records, nonpublic correctional policies and training materials, and other materials that defendants believe could compromise the safety or security of a Department of Corrections and Community Supervision facility or office if disclosed to an incarcerated person or the general public.

Access and Use

Access to ordinary Confidential Material is limited to specified counsel and their necessary employees or contractors, certain Department of Corrections and Community Supervision or Board employees, the court and its personnel, certain people connected to the material, deposition personnel, people approved in writing by counsel, and the parties. Plaintiffs’ counsel may allow the plaintiffs to inspect Confidential Material as needed to prosecute the case, but the plaintiffs may not retain copies.

Attorney’s Eyes Only material may be disclosed to plaintiffs’ attorneys, defendants and their attorneys, specified deposition personnel, the court and court personnel, and anyone else approved by the producing party. People receiving that material under the order must agree in writing not to use it outside this case or disclose it further, subject to the order’s stated provisions.

Confidential Material and Attorney’s Eyes Only material may be used only as necessary for this litigation, including appeals. The order does not concede that any material is relevant or admissible, and each party keeps the right to object to its use or admissibility. The order also states that it does not waive applicable privileges or protections for materials disclosed in the case.

Designations, Court Use, and Sealing

Deposition transcripts and exhibits receive temporary protection for 30 days after the final transcript becomes available. During that period, the parties may identify particular portions for continued confidential or Attorney’s Eyes Only treatment. The order provides procedures for correcting an accidental failure to designate material and for challenging another party’s or nonparty’s designation. A challenge must first be addressed in good faith between counsel and, if unresolved, may be presented to the court within 30 days of receiving the designated material.

The order limits disclosure to incarcerated individuals in the custody of the Department of Corrections and Community Supervision, except for the plaintiffs, unless defendants’ counsel agrees in writing or the court orders otherwise. Protected material may not be disclosed in open court without first giving defendants’ counsel an opportunity to contest disclosure or admissibility.

The order requires plaintiffs’ attorneys seeking to file papers containing protected material to obtain defendants’ written consent or request that the papers be filed under seal under the court’s procedures. It separately states that no document may be filed under seal without a further court order addressing the specific material. A sealing application must address the applicable standards, including the authority identified by the court. The order also preserves the redactions expressly allowed by Federal Rule of Civil Procedure 5.2.

End of the Case

Within 120 days after the action, including appeals, ends, plaintiffs’ counsel must return or destroy the protected material, subject to limited retention of attorney work product and court filings. Retained protected material remains covered by the order. The order does not decide the merits of the plaintiffs’ claims or defendants’ defenses.