Uniformed Fire Officers Association v. DeBlasio

Background

The document is a stipulated confidentiality and protective order. It refers to a July 22, 2020 order granting the plaintiffs’ motion for a temporary restraining order that barred the defendants from producing certain disciplinary records of the plaintiffs’ members. Those records included records resulting in an unsubstantiated or unfounded determination, records in which an officer was exonerated, and records that were pending or not final. The document also refers to a July 28, 2020 order requiring the defendants to disclose certain materials in discovery to the plaintiffs, including materials covered by the temporary restraining order and other related agency materials.

Confidential materials and permitted use

The stipulation defines “Confidential Materials” as the specified disciplinary records and other agency materials related to them. A party receiving those materials, and its attorney when applicable, may use them only to prepare or present that party’s case in this action or any appeal.

Disclosure is allowed only when necessary to prepare or present a claim or defense. Before trial, disclosure may be made to a retained or specially employed expert, a deposition witness, or the Court. Before disclosure to an expert or deposition witness, the receiving party must provide that person with the order and obtain a written agreement not to use or further disclose the materials except in connection with this case and testimony taken in it.

Deposition testimony that reveals the contents of Confidential Materials is also treated as confidential. The relevant transcript portions and exhibits must be separately bound and marked “CONFIDENTIAL.”

Court filings and privilege protections

A party seeking to file documents under seal must make a specific request to the Court explaining the reasons for sealing and addressing the Second Circuit’s decision in Lugosch v. Pyramid Co. of Onondaga. When filing Confidential Materials or papers that disclose them, the parties must publicly file a redacted version and submit an unredacted version under seal, along with unredacted courtesy copies for the Court and opposing counsel.

The order provides that producing privileged or otherwise protected material, including attorney-client or attorney-work-product material and non-party personally identifying information, does not waive the applicable protection. A producing party may make a clawback demand requiring the receiving party to return or destroy identified protected material. The receiving party generally must do so within ten business days, notify affected third parties, and provide written assurance. The order also requires a receiving party that identifies apparently protected material to notify the producing party promptly.

Compliance with the order does not admit that material is relevant, privileged, or admissible. The order does not limit a party’s own use of its Confidential Materials or its ability to review, withhold, or redact materials for relevance, responsiveness, statutory requirements, or privilege. It also states that the defendants’ use of materials remains subject to the July 22 order.

Ruling and effect

Judge Katherine Failla ordered the stipulation on August 5, 2020. The order states that the Court may modify the stipulation at any time, that the confidentiality agreement does not bind the Court or its employees, and that the Court retains jurisdiction over the agreement’s terms only for the pendency of the litigation. The document addresses confidentiality, discovery, and filing procedures; it does not state a ruling on the underlying claims.