Craven v. City Of New York
- Jesse Furman
- 1:19-cv-01486
- U.S. District Court · Southern District of New York
- 11
In Craven v. City of New York, Judge Furman entered a stipulated protective order governing confidential discovery and non-disclosure.
The order binds the parties, their representatives, agents, experts, consultants, litigation service providers, third parties providing discovery, and other persons with actual or constructive notice who receive or access covered material.
What happened
Cheryl Craven v. The City of New York, Amy Weiswasser, Laura Parker, and John and Jane Doe involved the parties’ request for an order protecting nonpublic and competitively sensitive information disclosed during discovery. The parties agreed to the proposed terms through their lawyers.
The order limits disclosure of materials labeled confidential, identifies who may receive them, requires non-disclosure agreements for some recipients, and permits challenges to confidentiality designations. It also establishes procedures for accidentally produced privileged information, including returning or destroying it, and requires most confidential materials to be returned or destroyed after the case ends.
Judge Jesse Furman ordered the stipulated protective arrangement after finding good cause, but stated that the court had not reviewed the documents and was making no finding that they were confidential. The order also does not authorize filing documents under seal without a separate court order.
The detailed version
- Craven v. City Of New York · No. 1:19-cv-01486
- Jesse Furman
- Aug. 24, 2020
Background
The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c). They sought rules for protecting nonpublic and competitively sensitive information that might be disclosed during discovery. The court found good cause for an appropriately limited order governing the pretrial phase of the case.
Confidentiality Rules
The order permits a producing party to label only portions of discovery material as “Confidential” when the party reasonably and in good faith believes the material falls within specified categories. These categories include information about third parties in the care or custody of the New York City Human Resources Administration/Department of Social Services, the City of New York, or its agencies; personal or intimate information about non-plaintiffs; certain personal information and personnel files; previously undisclosed business, product-development, or marketing information; and any other category the court later designates as confidential.
People subject to the order generally may not disclose confidential discovery material except as the order allows. Permitted recipients include the parties, litigation counsel and their staff, certain vendors, mediators or arbitrators, document authors and recipients, potential witnesses, experts and consultants, deposition transcription personnel, and the court. Some recipients must first receive the order and sign a non-disclosure agreement.
The material may be used only to prosecute or defend this case and any appeals, not for business, commercial, competitive, or unrelated litigation purposes. The order also requires precautions against unauthorized disclosure. Within 60 days after final disposition of the case, including appeals, recipients generally must return or destroy confidential material, although specifically retained litigation attorneys may keep archival copies of certain case files and work product subject to the order.
Privilege and Confidentiality Disputes
The order states that producing privileged or otherwise protected material does not waive the applicable privilege or protection. A producing party may demand the return or destruction of such material, and the receiving party generally must comply within five business days. The receiving party may ask the court to compel production, subject to the order’s restrictions on revealing the material’s contents.
Parties may object to confidentiality designations or request additional limits, such as an attorneys’-eyes-only designation, before trial. If the parties cannot resolve the dispute, they must present it to the court under the court’s procedures. The court retains jurisdiction to enforce the order and impose contempt sanctions for violations.
Court’s Limitation on Sealing
The order preserves the public’s presumptive right of access to judicial documents. Judge Furman specifically stated that the court had not reviewed the documents covered by the stipulation and therefore made no finding that they were confidential. Confidential treatment of materials submitted to the court remains discretionary, and the order does not authorize the parties to file documents under seal without a prior court order.
Disposition
The court ordered the stipulated confidentiality and protective arrangement. This was a discovery-related order; it did not decide the merits of the claims or defenses in the underlying case.
Read the full 11-page opinion on CourtListener, the free public archive maintained by the Free Law Project.