Fasanello v. United Nations International School

Background

The parties, through counsel, 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 limited order governing the pretrial phase of the case.

Confidentiality designations

The order allows a producing party—the party providing discovery material—to designate only portions that it reasonably and in good faith believes are confidential. Listed categories include previously undisclosed financial information; information about ownership or control of a nonpublic company; business, product-development, or marketing plans; personal or intimate information; medical and legal records; and other categories the court later approves.

For most discovery material, the producing party or its counsel must clearly mark the protected portions as “Confidential” and provide a redacted copy for future public use. Deposition testimony and exhibits may be designated during the deposition or within 30 days afterward. During that 30-day period, the entire deposition transcript must be treated as confidential. A producing party may also correct an earlier failure to designate material by giving written notice and providing replacement copies within two business days.

Permitted disclosures and use

Confidential discovery material may be disclosed to the parties and certain insurers, counsel and their assigned staff, outside vendors, mediators or arbitrators, document authors and recipients, potential witnesses, experts and other specialized advisers, deposition stenographers, and the court. Mediators, arbitrators, witnesses, experts, and certain advisers must first sign the order’s nondisclosure agreement, and counsel must retain those agreements.

Recipients may use confidential material only to prosecute or defend this case and any related appeals. The order does not restrict a party’s rights concerning its own documents or information. It also permits production in response to a lawful subpoena or other compulsory process, subject to notice to the producing party when reasonably possible and, if time allows, at least 10 days before disclosure.

Court filings and disputes

The order does not itself determine that any discovery material is confidential or guarantee that the court will seal it. A party filing confidential material must publicly file a redacted version and separately seek permission to file an unredacted version under seal, supported by a particularized justification. The court warned that material introduced at trial is unlikely to remain sealed without the required findings.

A party may object to a confidentiality designation or request additional disclosure limits, such as an attorneys’-eyes-only restriction, by giving written notice stating the specific grounds. If the parties cannot resolve the issue, the affected counsel must present the dispute to the court under the court’s individual practices.

Privilege and end of the order

If privileged or otherwise protected information is accidentally disclosed, the disclosure does not automatically waive the privilege or protection. After notice, the receiving party must make reasonable efforts to collect and return copies within three business days, destroy related notes or summaries, stop reading or using the material, and take other specified steps. The receiving party may challenge the privilege or protection in court.

Within 60 days after final disposition of the case, including appeals, recipients must return or, with the producing party’s permission, destroy confidential material and certify that they have retained no copies or summaries. Counsel specifically retained for the case may keep archival copies of specified case records and work product, which remain subject to the order. The order continues after the litigation ends, and the court retains jurisdiction to enforce it and impose contempt sanctions.

Disposition

Judge Gregory H. Woods ordered the stipulated confidentiality agreement and protective order on December 18, 2019. The opinion is a discovery-related procedural order and does not state a ruling on the parties’ underlying claims or defenses.