Nance v. The City of New York

Background

The parties, through counsel, jointly requested 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 to whom a confidentiality duty is owed. The court found good cause for an appropriately tailored order governing the pretrial phase of the case.

Confidentiality Rules

The order defines “Discovery Material” as information produced or disclosed during discovery. A producing person may designate only material whose disclosure is restricted by law or would harm business, commercial, financial, or personal interests, including previously undisclosed financial information, ownership or control information about a nonpublic company, business or marketing plans, and personal or intimate information. The order also permits the court to give other information confidential status.

People subject to the order may not disclose designated confidential material except as the order allows. Permitted recipients include the parties, insurers and their counsel, counsel and support staff working on the case, litigation-service providers, mediators or arbitrators, certain people identified on a document, potential witnesses, experts and other specialized advisers, deposition stenographers, and the court and its personnel. Several categories of recipients must first receive the order and sign a nondisclosure agreement.

Confidential material may be used only to prosecute or defend this case and related appeals—not for business, commercial, competitive, or other litigation purposes. The order does not waive objections to discovery, privilege, or other protections, and it does not decide whether evidence will be admissible at trial.

Designation and Disputes

The order establishes procedures for marking documents and portions of documents as confidential. Deposition transcripts are treated as confidential for 30 days after the deposition, during which the designating person may identify specific pages, lines, or exhibits for continued protection. A producing person may also correct an earlier failure to designate material before trial by notifying prior recipients and providing a properly marked copy.

A party may object to a confidentiality designation or request additional limits, such as attorneys’-eyes-only treatment, before trial. If the parties cannot promptly resolve the issue, counsel must bring the dispute to the court under the judge’s individual rules.

Court Filings and Privileged Information

The order states that confidential discovery material is not automatically entitled to be filed under seal. A party seeking to file material under seal must first file a letter motion explaining the basis for sealing. Public redacted and sealed unredacted versions are required for confidential court submissions. The court retains discretion over confidential treatment and states that it is unlikely to seal material introduced at trial.

If a party accidentally discloses material protected by attorney-client privilege or attorney work-product protection, the disclosure does not by itself waive that protection. After a claim of inadvertent disclosure, the receiving party generally must return or destroy the material within five business days and provide a certification. The receiving party may ask the court to order production of the material, while the disclosing party retains the burden of establishing the privilege or protection.

End of the Case and Enforcement

The protective order survives the end of the litigation. Within 30 days after final disposition, recipients must return or, with the producing person’s permission, destroy confidential discovery material and certify that they retained no copies or reproductions. Attorneys specifically retained for the case may keep archival copies of certain case and work-product materials, but those copies remain subject to the order.

The order also requires secure handling of personally identifying information and prompt notice of a data breach. It permits production in response to a lawful subpoena or other legal requirement after notice to the producing person when possible. Willful violations could lead to contempt punishment, and the court retains jurisdiction to enforce the order and impose contempt sanctions. Judge Jeannette A. Vargas entered the order after the parties stipulated and agreed to its terms.