Rich v. Fox News Network LLC

Background

Joel and Mary Rich sued Fox News Network, LLC, Malia Zimmerman, and Ed Butowsky. The parties, through their lawyers, asked the court to issue an amended stipulated confidentiality agreement and protective order under Federal Rule of Civil Procedure 26(c). That rule allows a court to protect parties from harm connected with discovery, which is the pretrial exchange of information and evidence.

The parties agreed that discovery could involve nonpublic and sensitive information. The order states that the court found good cause for an appropriately limited confidentiality order governing the pretrial phase of the case.

Confidentiality designations

The order defines “Discovery Material” as information of any kind produced or disclosed during discovery. A producing party may designate material “Confidential” when it reasonably and in good faith believes disclosure could seriously harm its commercial, business, or journalistic interests, or could invade an individual’s legitimate privacy interests. Examples include business information, financial records, journalistic sources and practices, reporting practices, personnel records, and personal information.

A producing party may designate material “Highly Confidential” when it was designated that way in another proceeding or when the party reasonably and in good faith believes it contains or reveals personally sensitive information, including medical or personal financial records, or information that would be protected by the newsgathering privilege in another proceeding. The order states that producing such information in this case does not waive that privilege. The parties retain the right to challenge confidentiality designations under the order’s procedures.

The order generally prohibits anyone subject to it from disclosing designated Confidential or Highly Confidential Discovery Material except as the order permits.

Who may receive protected material

Confidential material may be disclosed to the parties; counsel and their assigned staff; vendors and service providers working on the case; mediators or arbitrators; authors, addressees, and other persons identified on a document as having received it; certain witnesses; experts and other specialized advisers; witnesses during depositions or trial testimony when counsel has a good-faith basis to use the information; deposition stenographers; and the court and its personnel.

Highly Confidential material may be disclosed to counsel and assigned staff; the parties, but only with respect to produced newsgathering materials concerning Seth Rich or the Rich Family; a self-represented party after a successful application to the court and a showing of good cause; vendors and service providers working on the case; mediators or arbitrators; certain persons identified on documents; experts and specialized advisers; witnesses during depositions or trial testimony when counsel has a good-faith basis; deposition stenographers; and the court and its personnel.

Before certain disclosures, counsel must provide the recipient with the order and obtain a signed nondisclosure agreement. Counsel must retain those agreements.

Court filings, challenges, and privileges

A party seeking to file documents under seal must ask the court for permission through a motion to redact or file under seal, supported by a declaration allowing the court to make the required findings. When a filing contains protected material, the parties must publicly file a redacted version and file the unredacted version under seal, along with required courtesy copies.

The order does not waive objections to discovery, privileges, or other protections, and it does not decide whether evidence will be admissible at trial. It also provides a procedure for challenging a confidentiality designation: the objecting party must give written notice stating the grounds, and if the parties cannot promptly agree, the moving party must request a conference with the court under Local Civil Rule 37.2.

The order allows disclosure in response to a lawful subpoena or other compulsory process, subject to notice requirements. Highly Confidential material may not be produced in another legal proceeding unless a court orders it or production is required by a government agency or law-enforcement entity with jurisdiction.

Duration and ruling

Recipients must take precautions against unauthorized or accidental disclosure. Within 60 days after final disposition of the action, including appeals, recipients generally must return or destroy protected materials and certify that they retained no copies or other reproductions. Lawyers specifically retained for the case may keep archival copies of specified 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 or impose contempt sanctions.

Magistrate Judge Sarah Netburn entered the amended stipulated confidentiality and protective order. The opinion is a discovery and confidentiality ruling, not a decision on the merits of the parties’ claims.