Bryant v. Indyke

Background

Juliette Bryant and defendants Darren K. Indyke and Richard D. Kahn, in their capacities as executors of the Estate of Jeffrey Edward Epstein, submitted a stipulated confidentiality agreement and asked the court to issue a protective order under Federal Rule of Civil Procedure 26(c). The requested order governed the handling of nonpublic and sensitive information disclosed during discovery.

Order

The court found good cause for an appropriately tailored confidentiality order covering the pretrial phase of the case. It ordered the parties, their attorneys and agents, people acting with them, and others with actual notice of the order to follow its terms, subject to possible contempt sanctions.

The order permits a producing party to label portions of discovery material confidential when the party reasonably and in good faith believes the material includes categories such as:

- Medical, mental-health, or other health-care records; - Social Security numbers, personal telephone numbers, tax returns, and credit or banking information; - Names of alleged minor victims of sexual abuse; - Previously undisclosed financial information; and - Certain nonpublic business, marketing, financial, regulatory, commercial, or legally protected information.

Paragraph 4 also allows the parties to agree in writing to treat other material as confidential and allows the court to grant confidential status to additional categories later. The court adopted the agreement as modified in paragraph 4.

Disclosure and Use Restrictions

Recipients generally may not disclose designated confidential discovery material except to specified people, including the parties, counsel and their litigation staff, certain vendors, mediators or arbitrators, authors or addressees of documents, potential witnesses, experts, deposition stenographers, and the court. Several of these recipients must first receive the order and sign a nondisclosure agreement.

Confidential material may be used only to prosecute or defend this action, pursue appeals, or participate in certain dispute-resolution proceedings with the producing party’s permission. The order does not restrict a party’s use of its own documents or information.

Challenges, Court Filings, and Trial Materials

A party may object to a confidentiality designation before trial by giving written notice stating the grounds for the objection. If the parties cannot resolve the dispute, they must bring it to the court by motion. The party seeking confidentiality bears the burden of showing that the designation was proper, and the material remains confidential while the dispute is pending.

A party seeking to file confidential material with the court must publicly file a redacted version and submit an unredacted version under seal, accompanied by an application and supporting declaration that specifically justify sealing. The order states that the court may unseal documents if the required findings are not made. It also states that the court is unlikely to keep discovery material confidential if the material is introduced at trial. The order specifically provides that any application to maintain confidentiality for documents or information presented at trial must be made to the trial judge in advance of trial.

Privilege and Return of Materials

The order establishes procedures for material that may be protected by attorney-client privilege, work-product protection, or another privilege or immunity. A recipient must limit its review, notify the producing person, and generally return or destroy material claimed to have been inadvertently disclosed within five business days unless the recipient challenges the claim. The producing person must then provide a privilege log, and the producing party retains the burden of establishing the claimed protection.

Within 60 days after final disposition of the action, including appeals, recipients must generally return or destroy confidential discovery material and certify that they have done so. Outside counsel may retain one archival copy of specified case materials, subject to continuing confidentiality obligations. The order survives the end of the litigation, and the court retains jurisdiction to enforce it and impose contempt sanctions.

Disposition

Judge Debra Freeman adopted the stipulated confidentiality agreement as modified in paragraph 4 and entered the protective order on May 22, 2020. This was a discovery-related order; it did not decide the underlying merits of the lawsuit.