J&R Multifamily Group, Ltd. v. UBS Real Estate Securities, Inc.

Background

The court considered J&R Multifamily Group, Ltd.’s motion for entry of a protective order. The opinion is the protective order itself and does not describe the underlying claims.

Terms of the Protective Order

The order defines “Classified Information” as information designated “Confidential,” “For Counsel Only,” or “Attorneys Eyes Only.” It identifies “Qualified Persons” who may receive protected information, including litigation counsel and staff, independent experts and consultants who agree in writing to be bound by the order, the court and its staff, certain party employees, litigation vendors, court reporters, litigation-support personnel, and certain authors or authorized recipients of the information.

A party may designate information only if it in good faith believes the information is confidential. The order identifies examples of potentially protected material, including trade secrets, proprietary financial information, operational data, business plans, competitive analyses, personnel files, legally protected personal information, and other sensitive information. Publicly available information and information lawfully possessed or obtained without disclosure restrictions is excluded from protection. “For Counsel Only” or “Attorneys Eyes Only” designations are reserved for information believed to be unknown to the opposing party and the employees of a corporate party.

Use, Disclosure, and Court Filings

Protected information may be used only to prepare for, conduct, and appeal this litigation. It may not be disclosed except as allowed by the order, applicable law, or a valid court order. The order establishes marking procedures for documents and deposition testimony, including a 30-day period during which deposition transcripts are treated as “For Counsel Only.” It also provides procedures for correcting an inadvertent failure to designate information and for responding to unauthorized disclosures.

No document may be filed under seal without a further order addressing the specific document or portions to be sealed. An application to seal must include affidavits and a memorandum of law addressing the applicable sealing standards, including the factors identified in Lugosch v. Pyramid Co. of Onondaga. The order also sets notice periods when a party seeks to use another party’s confidential information and provides options such as redaction, submission for private judicial review, or filing under seal.

Challenges and Post-Litigation Duties

A party need not immediately challenge a confidentiality designation. The parties must first try to resolve disputes informally. If that fails, the objecting party may object in writing, after which the designating party has 14 days to ask the court to preserve the designation. Similar 14-day procedures apply to objections concerning whether a person is a Qualified Person or may access particular protected information.

Within 120 days after the litigation and any related appeal conclude, protected information and most reproductions, notes, summaries, and descriptions must be returned or destroyed, subject to specified exceptions and any contrary court order. Restrictions on communicating and using protected information generally continue after the litigation ends. The parties may agree to exceptions, and any party may ask the court to modify the order.

Ruling

Judge P. Castel entered the protective order on January 24, 2020. The order governs the handling of classified information by the parties, authorized recipients, and certain nonparties in this litigation.