Marvin H. Schein Descendants LLC v. Brown

Background

The matter concerns post-judgment discovery in an action involving Leslie J. Levine, acting solely as trustee of The Marvin H. Schein Descendants’ Trust, as judgment creditor, and Michael D. Brown, as judgment debtor. The court found good cause for an appropriately tailored confidentiality order. The opinion states that the judgment debtor’s attorneys did not respond to the judgment creditor’s November 9, 2019 communication proposing a stipulated protective order.

Protective Order

The court ordered persons subject to the order—including the parties, attorneys, representatives, agents, experts, consultants, third parties providing discovery, and others with actual or constructive notice—to follow its terms, subject to possible contempt sanctions.

The order defines “Discovery Material” as information provided during post-judgment discovery. A producing person may designate nonpublic business, commercial, financial, or personal information as “Confidential” when public disclosure is restricted by law or would likely seriously harm the person’s interests or violate privacy or confidentiality obligations. If a confidential portion can reasonably be separated from nonconfidential material, only the confidential portion should be designated. Materials previously designated confidential under a protective order in a related California federal case are also treated as confidential under this order.

Confidential material may be disclosed only to specified recipients, including the parties; counsel and assigned staff; counsel for Marvin H. Schein Descendants’ LLC, identified in the order as the assignee of the judgment; certain people identified on a document; potential deposition witnesses; experts and consultants; deposition-support personnel; litigation-support services; the court and its staff; and others approved in writing by the person who designated the material. Certain recipients must first receive the order and sign a nondisclosure agreement.

Challenges and Privilege

A person may object to a confidentiality designation or request stricter limits on disclosure by serving written notice explaining the grounds. If the parties cannot promptly agree, counsel must request a joint telephone conference with the court.

The order also addresses information claimed to be protected by attorney-client privilege or attorney work-product protection. An inadvertent disclosure, despite reasonable preventive steps, does not by itself waive those protections. After receiving a claim of inadvertent disclosure, recipients must return or destroy the material within five business days and provide counsel’s certification. The disclosing person must then provide a privilege log within five business days. Any motion seeking compelled production of the material must be filed under seal and may not rely merely on the fact of inadvertent disclosure; the disclosing person retains the burden of establishing protection.

Disposition and Limits

Judge Jesse M. Furman entered the protective order. It survives the conclusion of judgment enforcement. Within 30 days after enforcement concludes, confidential material and copies must be returned to the producing person or destroyed with that person’s permission. The court retains jurisdiction over persons subject to the order as needed to enforce its obligations or impose contempt sanctions.

The order expressly states that the court did not review the referenced documents and therefore made no finding that any particular document is confidential. Confidentiality determinations, if needed, will be made document by document under the court’s procedures and the presumption favoring public access to judicial documents. The court also did not authorize filing documents under seal without a prior court order.