Brescia v. LTF Club Management Company LLC

Background

All parties, through counsel, requested a protective order under Federal Rule of Civil Procedure 26(c). The request concerned nonpublic and competitively sensitive information that might be disclosed during discovery. The parties agreed to the proposed terms, and the court found good cause for an appropriately limited 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 only material it reasonably and in good faith believes includes protected information, such as previously undisclosed financial information; information about ownership or control of a nonpublic company; business, product-development, marketing, or compensation information; employee manuals or handbooks; personal or intimate information; or information otherwise necessary to protect the party's interests. The court may later give confidential status to another category of information.

The producing party or its counsel must clearly mark confidential portions and provide a redacted copy for future public use, subject to special procedures for deposition testimony and exhibits. A producing party may also make a later designation before trial if it discovers that previously produced material should have been designated confidential.

Permitted Disclosure and Use

Confidential material may be disclosed only to the categories of people listed in the order. These include the parties and certain employees, in-house counsel, insurers and their counsel, litigation counsel and their support staff, vendors working on the case, mediators or arbitrators, authors and addressees of documents, potential witnesses, deponents who need to review materials, experts and other specialized advisers, deposition reporters and videographers, and the court and its personnel. Some recipients must first sign a nondisclosure agreement, which counsel must retain and provide as specified in the order.

Recipients may use confidential material only to prosecute or defend this case and related appeals, not for business, commercial, competitive, or other litigation purposes. The order does not restrict a party's rights concerning its own documents or information.

Court Filings and Challenges

A party filing documents under seal must file a letter brief and supporting declaration explaining on a particularized basis why continued sealing is justified. The court retains discretion over whether to give confidential treatment to material submitted with a motion or other proceeding. The order warns that the court is unlikely to seal material introduced into evidence at trial, even if it was previously designated confidential. Parties must publicly file redacted versions of confidential court submissions and file unredacted versions under seal.

A party may object to a confidentiality designation or request additional disclosure limits, such as attorneys'-eyes-only treatment in extraordinary circumstances. If the parties cannot resolve the issue promptly, counsel must present the dispute to the court under the court's individual practices.

Inadvertent Privileged Disclosures and Final Handling

An inadvertent disclosure of material subject to attorney-client privilege or work-product protection does not waive or forfeit that protection under the order. After receiving a claim of inadvertent disclosure, the receiving party generally must return or destroy the material within five business days and provide counsel's certification. The disclosing party must then provide a privilege log, and the receiving party may ask the court to compel production after meeting and conferring. The disclosing party retains the burden of establishing that the material is privileged or protected.

Within 60 days after final disposition of the case, including appeals, recipients must return confidential material or destroy it if the producing party permits, and certify that they retained no copies or other reproductions. Litigation attorneys may keep specified archival materials, but those copies remain subject to the order. The order survives termination of the litigation, and the court retains jurisdiction to enforce it and impose contempt sanctions.

Ruling

Judge Philip M. Halpern signed and entered the confidentiality order on May 28, 2020. The order governs discovery confidentiality and related enforcement; it does not waive discovery objections or privilege, and it does not decide the admissibility of evidence at trial.