Brown v. O'Neill

Background

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

Order's requirements

The order defines “Discovery Material” as information of any kind produced or disclosed during discovery. A producing party may designate only portions that it reasonably and in good faith believes contain specified categories of information, including previously undisclosed financial information, information about ownership or control of a nonpublic company, business or marketing plans, personal or intimate information, or another category later given confidential status by the court.

People subject to the order generally may not disclose designated confidential material except as the order permits. Permitted recipients include the parties and certain insurers, counsel and their staff, outside vendors working on the case, mediators or arbitrators, people identified as authors or recipients of a document, potential witnesses, experts, deposition stenographers, and the court. Mediators, witnesses, experts, and certain other recipients must first receive the order and sign a nondisclosure agreement.

The order sets procedures for designating documents and deposition testimony, including later correcting an omitted designation. It preserves objections to discovery requests, privileges and other protections, and objections to confidentiality designations. A party seeking to file confidential material must publicly file a redacted version and separately seek permission to file an unredacted version under seal, with a particularized justification. The order warns that the court is unlikely to seal material introduced at trial merely because it was previously designated confidential.

Confidential material may be used only to prosecute or defend this action and related appeals, not in another litigation proceeding. The order does not prevent production in response to a lawful subpoena or other compulsory process, but requires notice to the producing party when reasonably possible. Within 60 days after final disposition, recipients must return or, with the producing party's permission, destroy the material and certify that they retained no copies, subject to a limited archival-copy provision for attorneys specifically retained for the action.

Disposition and effect

Judge Gregory H. Woods ordered the parties and the other people covered by the order to comply with its terms, with violations subject to contempt. The order states that the court made no finding that any designated material is confidential, retains discretion over whether to give such material confidential treatment, and retains jurisdiction to enforce the order or impose sanctions for contempt. The opinion is a protective-order ruling, not a decision on the underlying claims.

Caption note

The provided case name is “Brown v. O'Neill,” but the opinion's caption identifies the plaintiffs as “ROBKIEM BROWN ET AL.” and the defendants as “THE CITY OF NEW YORK, ET AL.”