Taschler v. J.P. Morgan Chase Bank, N.A.

Background

The plaintiffs are Tashia Taschler, Tiffany Wynn, and Michael Rossi, individually and on behalf of all others similarly situated. The defendants are J.P. Morgan Chase & Co. and J.P. Morgan Chase Bank, N.A. The parties anticipated that discovery would involve confidential, proprietary, private, commercial, customer, employee, financial, and other sensitive information. They jointly stipulated to a protective order under Federal Rule of Civil Procedure 26(c), which permits courts to protect discovery from improper disclosure.

Terms of the Protective Order

The order covers discovery materials, including disclosures, responses to discovery requests, deposition testimony and exhibits, subpoenaed information, and information directly derived from those materials. It creates two levels of protection: “CONFIDENTIAL” and “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY.” The latter is reserved for extremely sensitive information where disclosure to another party would create a substantial risk of serious harm that less restrictive measures could not avoid.

Protected material may generally be used only to prosecute, defend, or try to settle this case. The order identifies the people who may receive each type of information, including counsel, certain party representatives, experts, consultants, vendors, court personnel, court reporters, and certain witnesses. It places additional restrictions on highly confidential material and generally bars disclosure of either category to members or potential members of the proposed class unless the Court or the designating party permits it.

The order requires parties and nonparties to limit confidentiality designations to material that qualifies for protection. It prohibits mass or routine designations and allows sanctions for clearly unjustified or improper designations. A party or nonparty may challenge a designation, but must first provide written notice and participate in a telephone meet-and-confer process before seeking court intervention, subject to the order’s timing rules.

The order also addresses unauthorized disclosures, accidentally produced privileged material, confidential information belonging to nonparties, and the return or destruction of protected material after the litigation ends. It allows counsel to retain certain case files and work product, but retained protected material remains subject to the order.

Filing Under Seal

The order expressly states that it does not automatically authorize filing protected material under seal. Before seeking to file such material, the parties must confer about removing the designation or redacting the material. A party must obtain a separate court order authorizing the sealing of specific material, based on a particularized need. The order also preserves the right of an interested member of the public to challenge a sealing order.

Ruling and Effect

Judge Jesse Furman entered the stipulated protective order and found that good cause existed for its entry. The order binds the parties, counsel, law firms, and other people made subject to it. The Court emphasized, however, that it had not reviewed the documents and therefore made no finding that any particular document was confidential. Any such determination would be made document by document under the procedures in the order and subject to the presumption favoring public access to judicial documents. The order is a discovery-related procedural order, not a decision on the merits of the lawsuit.