Helm v. Indyke

Background

The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c) to protect nonpublic and sensitive information that might be disclosed during discovery. The document is captioned as a stipulated confidentiality agreement and protective order. The order identifies Teresa Helm as the plaintiff and Darren K. Indyke and Richard D. Kahn as defendants acting as executors of the Estate of Jeffrey Edward Epstein.

Terms of the Order

The order allows a producing party to designate only portions of discovery materials as confidential when it reasonably and in good faith believes they include specified sensitive information. Listed categories include medical and mental-health records; Social Security numbers and personal contact, tax, credit, and banking information; names of alleged minor victims of sexual abuse; previously undisclosed financial information; and certain nonpublic business, marketing, financial, regulatory, contractual, or commercially valuable information. The parties may also agree in writing to treat other material as confidential, and the Court may later grant confidential status to additional categories.

Confidential discovery material may be disclosed only to specified people, including the parties, counsel and their support staff, certain vendors, mediators, arbitrators, witnesses, experts, stenographers, and the Court. Several recipients must first receive the order and sign a non-disclosure agreement. Confidential material may be used only for prosecuting or defending this action, related appeals, or permitted alternative dispute resolution, unless a court allows otherwise.

The order establishes procedures for marking documents and deposition testimony, correcting an earlier failure to designate material as confidential, objecting to a confidentiality designation, and requesting additional restrictions such as attorneys’-eyes-only treatment. Materials remain confidential while a designation dispute is pending. The party seeking confidentiality bears the burden of supporting the designation.

The order also addresses court filings and privileged material. A party filing confidential discovery material must publicly file a redacted version and file the unredacted version under seal, unless the parties agree that the redacted confidential material is both confidential and immaterial to the lawsuit. A party seeking to seal material must provide a particularized justification. If privileged or protected material is inadvertently disclosed, the receiving party must limit its review, notify the producing person, and generally return or destroy the material within five business days unless the claim is disputed. The producing party must then provide a privilege log, and the receiving party may ask the Court to order production.

Within 60 days after final disposition of the action, including appeals, receiving parties generally must return or destroy confidential discovery material and certify that they have not retained copies or summaries. Outside counsel may keep one archival copy of specified case materials while continuing to protect the confidential information. The order continues after the litigation ends, and the Court retains jurisdiction to enforce it and impose contempt sanctions.

Ruling

Judge Debra Freeman stated that good cause existed for an appropriately tailored confidentiality order and adopted the parties’ agreement as modified in paragraph 4. The order also provides that any application to maintain confidentiality of documents or information presented at trial must be made to the trial judge in advance of trial. The Court did not itself find that any particular discovery material was confidential and retained discretion to decide whether to grant confidential treatment. This was a discovery and confidentiality order; the opinion does not decide the underlying merits of the lawsuit.