Indig v. Village of Pomona
- Judith McCarthy
- 7:18-cv-10204
- U.S. District Court · Southern District of New York
- 10
Indig v. Village of Pomona—Judge Halpern approved a protective order governing confidential discovery information in the case.
The parties, their counsel and representatives, experts, consultants, witnesses, vendors, third parties providing discovery, and others with actual or constructive notice of the order must follow its confidentiality and disclosure rules.
What happened
In Indig v. Village of Pomona, the parties asked the court to protect nonpublic and competitively sensitive information they might exchange during discovery.
The order allows parties to label qualifying discovery material confidential and limits who may receive it and how it may be used. It also sets procedures for challenging confidentiality designations, filing confidential materials with the court, handling accidentally disclosed privileged information, and returning or destroying confidential materials after the case ends.
Judge Philip M. Halpern found good cause and ordered the parties and other covered people to follow the protective order, with violations potentially punishable as contempt.
The detailed version
- Indig v. Village of Pomona · No. 7:18-cv-10204
- Judith McCarthy
- Apr. 21, 2020
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 limited order governing the pretrial phase of the case.
What the Order Covers
The order defines "Discovery Material" as information produced or disclosed during discovery. A producing party may designate material confidential only when it reasonably and in good faith believes the material includes specified categories, such as previously undisclosed financial information, information about ownership or control of a nonpublic company, business or marketing plans, or personal or intimate information. The court may also give confidential status to another category later.
People subject to the order generally may not disclose confidential discovery material except as the order permits. Permitted recipients include the parties and certain insurers, counsel and their staff, litigation vendors, mediators or arbitrators, document authors and recipients, potential witnesses, experts and other specialized advisers, deposition transcription services, and the court. Some recipients must first receive the order and sign a nondisclosure agreement.
Filing, Use, and Challenges
The order does not decide whether evidence is admissible, waive objections or privileges, or automatically require court filings to remain sealed. A party filing confidential material must publicly file a redacted version and file the unredacted version under seal, along with the required supporting materials. The order warns that the court may unseal material if the legal standard for sealing is not met and is unlikely to keep evidence confidential when it is introduced at trial.
Confidential material may be used only to prosecute or defend this case and any appeals, not for business, commercial, competitive, or unrelated litigation purposes. Parties may object to confidentiality designations or request additional limits, such as attorneys'-eyes-only treatment, and must bring unresolved disputes to the court under its individual practices.
Privilege and End of the Case
If privileged or attorney-work-product material is accidentally disclosed, the disclosure does not automatically waive the protection. The receiving party generally must return or destroy the material within five business days after notice, while the producing party must provide a privilege log. The receiving party may ask the court to order production, and the producing party retains the burden of showing that the material is privileged or protected.
Within 60 days after the final disposition of the case, including appeals, recipients must return or, with the producing party's permission, destroy confidential discovery material and certify that they kept no copies or other reproductions. Lawyers specifically retained for the case may keep archival copies of certain case materials, but those copies 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
The court entered the stipulated protective order on April 21, 2020. Judge Philip M. Halpern did not decide the underlying claims or defenses in this order.
Read the full 10-page opinion on CourtListener, the free public archive maintained by the Free Law Project.