Kukaj v. Sergeant Robert Krause

Background

The parties requested a protective order under Federal Rule of Civil Procedure 26(c) to protect nonpublic and competitively sensitive information that could be disclosed during discovery. The court found good cause for an appropriately tailored confidentiality order governing the pretrial phase of the action.

Confidentiality Designations

The producing party may designate only material it reasonably and in good faith believes contains confidential information. The listed categories include previously undisclosed financial information; information about ownership or control of a nonpublic company; business plans, product-development information, or marketing plans; personal or intimate information about an individual; and any other category the court later determines should receive confidential treatment.

For most discovery material, the producing party or its counsel must clearly mark the protected portions as “Confidential” and provide a version with the confidential information redacted for future public use. Deposition testimony may be designated during the deposition or by written notice identifying the specific pages and lines within 30 days after the deposition. During that 30-day period, the entire deposition transcript must be treated as confidential. The producing party may also later designate material that was initially produced without a confidentiality designation by notifying prior recipients in writing.

Permitted Disclosures and Use

Confidential discovery material may be disclosed to the parties and their insurers; counsel and their litigation support staff; outside vendors and service providers working on the case; mediators or arbitrators; people identified as authors, addressees, or recipients of a document; potential witnesses; experts and other specialized advisers; deposition transcription providers; and the court and its personnel. Witnesses, mediators, arbitrators, experts, and specialized advisers must first receive the order and sign the required nondisclosure agreement.

Recipients may use confidential discovery 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 produced in the action.

Court Filings and Challenges

A party filing confidential material with the court must publicly file a redacted version and file the unredacted version under seal, while providing unredacted courtesy copies to the court and opposing counsel. A party filing under seal must also submit a letter brief and supporting declaration explaining, on a particularized basis, why continued sealing is justified. The order states that the court retains discretion over confidential treatment and is unlikely to seal or otherwise protect material introduced as evidence at trial.

A party may object to a confidentiality designation at any time before trial by serving written notice that specifically states the grounds for the objection. A party may likewise request additional disclosure limits, such as attorneys' eyes only treatment in extraordinary circumstances. Unresolved disputes must be presented to the court under its individual practices.

Privilege, Return, and Enforcement

If privileged or protected information is inadvertently disclosed, the disclosure does not waive the privilege or protection. After receiving notice, the recipient must return or destroy all copies within five business days and provide counsel's certification. The disclosing party must then provide a privilege log within five business days of notification. The recipient may ask the court to order production, and the disclosing party retains the burden of establishing that the information is privileged or protected.

Within 60 days after final disposition of the action, including appeals, recipients must return or, with the producing party's permission, destroy confidential discovery material and certify that they have not retained copies or other reproductions. Attorneys specifically retained for the action may keep archival copies of specified case-related materials, but those copies remain subject to the order. The order survives termination of the litigation, and the court retains jurisdiction as necessary to enforce it or impose contempt sanctions.

Disposition

Judge Philip M. Halpern entered the confidentiality agreement and protective order on July 16, 2026. The order regulates discovery and confidentiality and does not resolve the merits of the parties' underlying claims.