Packer v. Bard College

Background

The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c). They stated that discovery could involve information protected by law, private personal information, and competitively sensitive information. The parties agreed to the proposed terms, and the court found good cause for an appropriately limited order governing the pretrial phase of the case.

Confidential Information

The order permits a producing party to designate as confidential only material that it reasonably and in good faith believes includes:

- Personal or intimate information about an individual, including health or medical information; - Information concerning Bard College’s investigation and adjudication of sexual-misconduct complaints involving former employee Carlos Valdez, including student records, personally identifying information about students, complainants, and witnesses, investigative files, third-party investigator files, and related medical information; or - Another category that the court later designates as confidential.

The producing party must mark confidential material and provide a version with the confidential information redacted for future public use. Deposition testimony is treated as confidential for 30 days after the deposition unless the producing party designates specific portions sooner or later as allowed by the order. A party may also correct an earlier failure to designate material before trial by notifying prior recipients in writing.

Limits on Disclosure and Use

People subject to the order may disclose confidential discovery material only to specified recipients, including the parties, insurers and their counsel, counsel and their assigned staff, outside vendors working on the case, certain document recipients, potential witnesses, experts and consultants, deposition transcription staff, mediators or arbitrators who sign the required nondisclosure agreement, and the court. Before disclosure to specified witnesses, experts, consultants, mediators, or arbitrators, counsel must provide the order and obtain a signed nondisclosure agreement.

Confidential discovery material may be used only to prosecute or defend this case and related appeals. It may not be used for business, commercial, competitive, or other litigation purposes. The order does not waive objections to discovery, privileges, or protections, and it does not decide whether evidence will be admissible at trial.

Sealing and Confidential Court Filings

A party filing material under seal must simultaneously submit a letter brief and supporting declaration giving a particularized justification for continued sealing. The order warns that the court may unseal documents unless the required specific, on-the-record findings show that sealing is essential and narrowly tailored. The court retains discretion over whether to keep designated material confidential when it is submitted in connection with a motion or other proceeding that may result in a ruling, and it states that material introduced at trial is unlikely to remain sealed.

When a filing contains confidential discovery material, the parties must publicly file a redacted version and file the unredacted version under seal, while also providing unredacted courtesy copies to the court and opposing counsel.

Challenges, Privilege, and Later Handling

A party may object to a confidentiality designation or request additional disclosure limits, such as attorneys’-eyes-only treatment, by written notice stating the grounds. Unresolved disputes must be brought to the court under its individual practices.

If privileged or attorney-work-product material is accidentally disclosed, the disclosure does not waive the protection. The receiving party must return or destroy the material within five business days after receiving notice and provide counsel’s certification. The disclosing party must then provide a privilege log within five business days, and the receiving party may ask the court to compel production. The party asserting privilege retains the burden of establishing that the material is protected.

Within 60 days after the final disposition of the case, including appeals, recipients must return or, with the producing party’s permission, destroy confidential discovery material and certify that they kept no copies or reproductions. Counsel retained specifically for the case may keep an archival copy of certain case files and work product, which remains subject to the order.

Ruling and Effect

The court entered the parties’ stipulated protective order. The order continues after the litigation ends, and the court retains jurisdiction to enforce it and impose contempt sanctions. It does not resolve the underlying dispute or determine the admissibility of any evidence.