Darling v. Northern Tool & Equipment Company, Inc.
- Jesse Furman
- 1:20-cv-00676
- U.S. District Court · Southern District of New York
- 20
In Darling v. Northern Tool, Judge Furman approved a protective order governing confidential discovery materials without deciding whether those materials were actually confidential.
The order governs the plaintiffs, the defendants, their counsel and permitted litigation participants, and any nonparty that produces discovery materials in the case.
What happened
In Darling v. Northern Tool & Equipment Company, Inc., the parties agreed that discovery might include confidential, proprietary, trade-secret, or commercially sensitive information. They asked the court to establish rules governing how such materials could be designated, used, disclosed, challenged, filed, and destroyed.
The order limits protected discovery materials to use in this case and related appeals. It identifies who may receive them, requires secure storage, provides procedures for challenging designations and handling accidentally disclosed privileged materials, and generally requires destruction after the case ends.
Judge Jesse Furman ordered the stipulated protective order but stated that the court had not reviewed the documents and made no finding that they were confidential. He also stated that protected materials may not be filed under seal without a prior court order and directed the Clerk of Court to terminate ECF No. 48.
The detailed version
- Darling v. Northern Tool & Equipment Company, Inc. · No. 1:20-cv-00676
- Jesse Furman
- June 9, 2020
Background
The plaintiffs are Christopher Darling, Glenn Darling, CGD Inc., doing business as Heavy Duty Diesel, and Darling Corporation. The defendants are Northern Tool & Equipment Company, Inc. and TGB International, LLC. The parties jointly stipulated to a protective order because they anticipated that discovery could include confidential, proprietary, trade-secret, or commercially sensitive information.
Terms of the Order
The order defines discovery material broadly to include documents, electronically stored information, testimony, transcripts, tangible things, and information produced or disclosed in discovery. A producing party may designate material as “CONFIDENTIAL” if it contains or reflects confidential, proprietary, or commercially sensitive information.
Protected material may be used only for this case or a related appeal. The order generally permits disclosure to outside counsel and litigation staff, certain party representatives, retained experts and consultants who agree to be bound by the order, court reporters, the court, specified litigation-support personnel, qualified mock jurors, mediators, and other people who receive the producing party’s written consent and agree to the order. The material must be stored securely in the United States.
The order establishes procedures for challenging a confidentiality designation. A party must identify the challenged material in writing and state the basis for the objection. The parties must first try in good faith to resolve the dispute. If they cannot agree, the receiving party may ask the court to decide whether the material is entitled to the designation. The material remains protected unless the designating party withdraws the designation or the court rules that it does not apply.
The order also addresses subpoenas, public filings, accidentally produced privileged material, mistaken failures to designate material, unauthorized disclosures, and final destruction of discovery materials. It generally bars public filing or disclosure of protected material without the producing party’s written permission or a court order. It requires the parties to destroy discovery material no later than 90 days after final termination of the case, subject to limited archival retention by outside counsel.
Court’s Action and Limits
Judge Jesse Furman ordered the stipulated protective order. The court expressly stated that it had not reviewed the documents covered by the order and therefore made no finding that they were confidential. Any such determination would occur later, if necessary, through document-by-document review and applicable procedures concerning judicial documents and public access.
The court further stated that it was not approving any provision that would allow the parties to file documents under seal without a prior court order. The Clerk of Court was directed to terminate ECF No. 48. The opinion does not decide the underlying claims or defenses in the case.
Read the full 20-page opinion on CourtListener, the free public archive maintained by the Free Law Project.