Holliday v. Brown Rudnick LLP

Background

The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c) for the pretrial discovery phase of the case. The order applies to the plaintiff, Mark E. Holliday, as trustee of the LB Litigation Trust; defendant Brown Rudnick LLP; and the counterclaim parties identified in the caption, including Paul N. Silverstein. The parties agreed to the order through counsel, and the court found good cause for an appropriately limited confidentiality arrangement.

Confidentiality Rules

A producing party may mark only material it reasonably and in good faith believes contains specified types of previously undisclosed information, including financial information, information about ownership or control of a nonpublic company, business or marketing plans, personal or intimate information, or another category later granted confidential status by the court. The order requires confidential portions to be marked and generally requires a redacted version for future public use.

Confidential discovery material may be disclosed only to listed recipients, including the parties, certain insurers and advisers, counsel and their staff, litigation vendors, mediators or arbitrators, certain witnesses, experts, court personnel, and other specified people. Witnesses, experts, mediators, and arbitrators must first receive the order and sign the required nondisclosure agreement. Covered recipients may use the material only to prosecute or defend this case and any appeals, not for another lawsuit or purpose.

Challenges, Court Filings, and Privilege

A party may object to a confidentiality designation before trial. If the parties cannot resolve the objection within three business days, they must present the dispute to the court under its individual practices. The order also provides that disclosure of privileged or work-product-protected material does not waive the protection. If a producing party notifies the recipient of such a disclosure, the recipient generally must take reasonable steps within 14 days to return, destroy, or sequester the material and stop reviewing or using it. A recipient that disputes the claim must promptly submit the material to the court under seal.

The order requires public redacted filings when confidential discovery material is filed with the court and directs the parties to follow the court’s sealing rules. It warns that the court may unseal documents unless specific findings show that sealing is essential to protect higher values and is narrowly tailored. The order also states that the court made no finding that any particular discovery material is actually confidential and is unlikely to preserve confidentiality for material introduced at trial.

Disposition and Effect

The court ordered the parties and other people with notice of the order to comply, subject to possible contempt for violations. Within 60 days after final disposition of the action, including appeals, recipients must return or destroy confidential discovery material and certify that they retained no copies or other reproductions, subject to a limited archival-copy exception for litigation counsel. The order survives termination of the litigation, and the court retained jurisdiction to enforce it and impose contempt sanctions. Judge Paul A. Engelmayer therefore entered the stipulated confidentiality agreement and protective order; the opinion did not resolve the underlying claims or counterclaims.