Doe v. Sarah Lawrence College
- Philip Halpern
- 7:19-cv-10028
- U.S. District Court · Southern District of New York
- 9
In Doe v. Sarah Lawrence College, Judge Halpern issued a protective order governing confidential discovery materials and related disclosures.
The parties, their representatives, agents, experts, consultants, third parties providing discovery, and other persons with actual or constructive notice of the order are subject to its confidentiality, nondisclosure, return-or-destruction, and enforcement requirements.
What happened
Doe v. Sarah Lawrence College involved the parties’ request for a court order protecting nonpublic and competitively sensitive information they might disclose during discovery. The parties agreed to the proposed terms through their lawyers.
The order allows certain financial, business, personal, and student-identifying information to be designated confidential. It limits disclosure and use of that information, requires protections for inadvertently disclosed privileged material, and sets procedures for sealing documents and challenging confidentiality designations.
Judge Philip M. Halpern found good cause for a tailored order and ordered the parties and other covered persons to follow its terms. The order remains in effect after the litigation ends and allows the court to enforce it and impose contempt sanctions.
The detailed version
- Doe v. Sarah Lawrence College · No. 7:19-cv-10028
- Philip Halpern
- July 2, 2020
Background
The parties, through counsel, jointly requested a protective order under Federal Rule of Civil Procedure 26(c). They sought protection for nonpublic and competitively sensitive information that might be disclosed during discovery. Judge Philip M. Halpern found good cause for an appropriately tailored confidentiality order governing the pretrial phase of the action.
Terms of the Order
The order defines “Discovery Material” as information produced or disclosed during discovery. A producing party may designate material confidential when it reasonably and in good faith believes the material contains previously undisclosed financial information, ownership or control information concerning a nonpublic company, business or marketing plans, personal or intimate information, or another category the court later protects.
The order continues earlier protections for the names and identities of Jane Doe and non-party students. Documents that identify those individuals, or that could reasonably allow a third party to identify them, must be treated as confidential and filed under seal when submitted to the court. Other confidential material must be marked or redacted according to the order’s procedures. Deposition testimony and exhibits may be designated during the deposition or within 30 days afterward.
Covered persons may disclose confidential material only to specified persons under the order. Before disclosure to certain categories of recipients, counsel must provide the order and obtain a signed nondisclosure agreement. Confidential material may be used only to prosecute or defend this action and any appeals, not for business, competitive, or unrelated litigation purposes.
The order does not waive objections to discovery, privileges, or evidentiary objections. It also establishes procedures for inadvertent disclosure of material protected by attorney-client privilege or the attorney work-product doctrine, including return or destruction within five business days, a privilege log, and a possible motion to compel production. The producing party retains the burden of establishing that the material is privileged or protected.
Sealing and Enforcement
Parties filing confidential material must publicly file a redacted version and file the unredacted version under seal. Except for materials covered by the prior protection for student identities, a party must also submit a letter brief and supporting declaration explaining why continued sealing is justified. The order states that the court retains discretion over whether to keep material confidential when it is submitted in connection with a motion or proceeding and warns that material introduced at trial is unlikely to remain sealed.
Within 60 days after final disposition of the action, including appeals, recipients must return or, with the producing party’s permission, destroy confidential material and certify that they have done so. Attorneys specifically retained for the action may keep archival copies of specified case materials, which 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 ordered the parties and other persons covered by the order to comply with the stipulated confidentiality and protective-order terms. The opinion is a discovery and confidentiality order; it does not decide the underlying claims.
Read the full 9-page opinion on CourtListener, the free public archive maintained by the Free Law Project.