The Travelers Indemnity Company of America v. Westchester Surplus Lines…

Order at issue

The parties submitted a confidentiality stipulation and proposed protective order under Federal Rule of Civil Procedure 26(c). The court found good cause for an appropriately tailored protective order and ordered procedures governing information and documents exchanged during the pretrial phase of the case.

Confidential information

Counsel may designate documents or information as confidential when, in good faith, the designation is needed to protect proprietary information, trade secrets, or other sensitive nonpublic information. Designated material is to be marked “CONFIDENTIAL” and used only in connection with this action. The order permits necessary disclosures to reinsurers, accountants, auditors, and regulators.

Before disclosing confidential information to another person, counsel must explain its confidential nature, explain that the court has prohibited use and disclosure outside this litigation, and obtain that person’s signed agreement to follow the order. A failure to mark material as confidential initially does not waive the right to designate it later. The parties may challenge confidentiality designations after attempting to resolve disputes in good faith.

Personal information and privilege

Personally identifying information exchanged in discovery must be stored and transferred securely and shared only with authorized individuals. The receiving party must immediately notify the producing party of a data breach and cooperate in addressing it. The order also provides that producing privileged or work-product-protected material, whether accidentally or otherwise, does not waive the protection in this case or another federal or state proceeding, to the extent permitted by Federal Rule of Evidence 502.

Sealing and end of litigation

The order states that marking information as confidential does not create a presumption that it may be filed under seal. The parties must follow the court’s procedures for requesting sealed filings. At the end of the litigation, confidential information and copies generally must be returned or certified as destroyed within the specified period, although counsel may retain protected working files subject to the order. The order does not prevent disclosure when required by law or a valid subpoena.

The court emphasized that it had not reviewed the documents and therefore made no finding that they were actually confidential. Any such determination would occur, if necessary, through document-by-document review under the court’s procedures and the presumption favoring public access to judicial documents. The court did not approve provisions purporting to authorize filing documents under seal without a prior court order. The Clerk was directed to terminate ECF No. 20.