Sweeney v. BDO USA, LLP

Background

The case involves plaintiff Dennis Sweeney and defendants BDO USA, LLP and Janet Bernier, in her individual and professional capacities. All parties, through counsel, requested a protective order under Federal Rule of Civil Procedure 26(c) to protect nonpublic and competitively sensitive information that might be disclosed during discovery. The parties stipulated to the order's terms, and the court found good cause for an appropriately limited confidentiality order governing the pretrial phase.

Confidential Information

The order defines “Discovery Material” as information produced or disclosed during discovery. A producing party may designate material as “Confidential” only when it reasonably and in good faith believes the material includes previously undisclosed financial information, information about ownership or control of a private company, business or marketing information, personal or intimate information about an individual, or another category later given confidential status by the court.

The producing party must clearly mark confidential portions of discovery material and provide a version with the confidential information redacted for future public use. Deposition exhibits or transcript portions may be designated during the deposition or within 30 days afterward. During that 30-day period, the entire deposition transcript must generally be treated as confidential unless the parties agree otherwise. A producing party may also later designate material that was initially produced without a confidentiality designation, subject to providing replacement copies within two business days.

Permitted Disclosures and Use

Confidential material may be disclosed only to people listed in the order. Those include the parties and their insurers, counsel and their support staff, litigation vendors, mediators or arbitrators, certain people identified on a document, potential witnesses, potential experts or specialized advisers, deposition stenographers, and the court and its personnel.

Before receiving confidential material, certain witnesses, experts, advisers, mediators, and arbitrators must receive a copy of the order and sign a nondisclosure agreement. Counsel must retain those agreements and produce them to opposing counsel before the person testifies or at the end of the case after a written request. Recipients may use confidential material only to prosecute or defend this action and related appeals, not for another purpose or another proceeding.

The order does not waive objections to discovery, attorney-client or other protections, or arguments about whether evidence is admissible at trial. It also does not prevent a party from producing confidential material in response to a lawful subpoena or other compulsory process, but the party must provide notice to the producing party when reasonably possible and, if the timing permits, at least 10 days before disclosure.

Court Filings and Challenges

The court did not determine that any particular discovery material is actually confidential and retained discretion to decide whether to give confidential treatment to designated material. The order warns that the court is unlikely to seal or otherwise protect material introduced at trial, even if it was previously sealed or designated confidential.

For court filings containing confidential discovery material, the parties must publicly file a redacted copy and file the unredacted copy under seal in accordance with the court's rules. A party seeking to keep material under seal must provide a particularized justification. A party may object to a confidentiality designation before trial, and the parties must bring unresolved disputes to the court under its individual practices. The same procedure applies to requests for additional disclosure limits, such as an “attorneys' eyes only” designation.

Disposition

Judge Gregory H. Woods ordered the parties and other people covered by the order to follow its terms, subject to contempt sanctions. Within 60 days after the final disposition of the action, including appeals, recipients must return or destroy confidential material if requested in writing and certify that they kept no copies or other reproductions. Specifically retained attorneys may keep archival copies needed for their professional responsibilities, but those copies remain subject to the order. The order survives the end of the litigation, and the court retains jurisdiction to enforce it and impose contempt sanctions.