Bharucha v. Siebert Williams Shank & Co.

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 producing person or a third party owed a duty of confidentiality. Judge Jeannette A. Vargas found good cause to issue a tailored confidentiality order for the pretrial phase of the case.

Confidentiality Designations

The order defines “Discovery Material” as information produced or disclosed during discovery. A producing person may designate material “Confidential” only when public disclosure is restricted by law or would harm business, commercial, financial, or personal interests, including:

- previously undisclosed financial information; - previously undisclosed information about ownership or control of a nonpublic company; - previously undisclosed business, product-development, or marketing plans; - personal or intimate information about an individual; or - another category the court later gives confidential status.

The order does not provide blanket protection for all discovery. It also does not itself establish that confidential material may be filed under seal.

Permitted Disclosures and Use

Confidential discovery may be disclosed only to specified recipients, including the parties and their insurers, counsel and litigation staff, litigation-support vendors, mediators or arbitrators, certain people identified in a document, possible witnesses, experts and other specialized advisers, deposition transcription personnel, and the court and its personnel. Some recipients must first receive the order and sign a nondisclosure agreement.

Recipients may use confidential discovery only to prosecute or defend this case and any appeals. They may not use it for business, commercial, competitive, or other litigation purposes. The order does not restrict a person’s use of that person’s own documents or information, or information obtained independently outside the federal discovery process.

Challenges, Subpoenas, and Court Filings

A party may object to a confidentiality designation before trial. If the parties cannot promptly resolve the objection, they must present the dispute to the court under the judge’s individual rules. A party seeking additional limits, such as an attorneys’-eyes-only restriction, must follow a similar process.

If requested discovery is 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, subject to an appropriate confidentiality designation.

The order does not automatically permit sealing. A party seeking to file documents under seal must first file a letter-motion explaining the basis for sealing and must publicly file a redacted version and separately file the unredacted version under seal. The court retains discretion over whether to keep material confidential and states that it is unlikely to seal material introduced as evidence at trial.

Personal Information and Inadvertent Privilege Disclosures

Recipients must securely maintain personally identifying information, such as Social Security numbers, financial account numbers, passwords, and information that could be used for identity theft. A recipient experiencing a data breach must immediately notify the producing person and cooperate in addressing the breach.

An inadvertent disclosure of material protected by attorney-client privilege or the attorney work-product doctrine does not waive that protection under the order. After a claim of inadvertent disclosure, the receiving party generally must return or destroy the material within five business days and provide counsel’s certification. The producing party must then provide a privilege log, while the receiving party may ask the court to compel production. The producing party retains the burden of establishing that the material is privileged or protected.

Duration and Enforcement

The protective order survives termination of the litigation. Within 30 days after final disposition, recipients must return or destroy confidential discovery and certify that they have not retained copies or other reproductions, unless the producing person permits destruction instead. Counsel specifically retained for the case may keep archival copies of certain case-related materials, which remain subject to the order.

The order states that willful violations may result in contempt punishment and that the court retains jurisdiction as necessary to enforce the order or impose contempt sanctions. The court issued the order on December 4, 2025.