Boyce-Lazare v. Chex Systems, Inc.

Background

The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c). A protective order is a court order governing the handling and disclosure of information exchanged during discovery. The parties sought protection for nonpublic and competitively sensitive information that might be disclosed in the case. The court found good cause for an appropriately limited order governing the pretrial phase.

Confidential information

The order permits a producing party to designate only material that it reasonably and in good faith believes includes specified categories of information, such as previously undisclosed financial information; information about ownership or control of a nonpublic company; business plans, product-development information, organizational charts, or marketing plans; policies and procedures concerning management of a nonpublic company; personal health information; intimate personal information; or another category that the court later gives confidential status.

The order establishes procedures for marking confidential material, including marking deposition testimony and exhibits. A producing party may correct an earlier failure to designate material by giving written notice and providing replacement versions within two business days. The order states that confidentiality designations do not waive objections to discovery, privileges, or protections, and do not decide whether evidence will be admissible at trial.

Disclosure limits and privilege

Confidential material may be disclosed only to listed recipients, including the parties, certain insurers and their counsel, counsel retained for the case and their staff, outside litigation vendors, designated mediators or arbitrators, people identified on a document, certain witnesses, experts or specialized advisers, deposition stenographers, and the court and its personnel. Some recipients must first receive the order and sign a nondisclosure agreement.

If a party accidentally discloses material subject to attorney-client privilege or attorney work-product protection, the disclosure does not by itself waive that protection. The receiving party generally must return or destroy the material within five business days after notice and provide a certification. The receiving party may ask the court to compel production, while the producing party retains the burden of establishing that the material is privileged or protected.

Court filings and challenges

The order reminds the parties to follow federal and Southern District of New York privacy rules when filing sensitive information. Certain sensitive information and specified cautionary categories may be redacted without court approval as described in those rules. Other redactions require court approval and must be narrowly tailored, consistent with the presumption that judicial documents are publicly accessible. The order also provides procedures for challenging confidentiality designations and requesting additional disclosure limits.

Confidential material may be used only to prosecute or defend this case and related appeals. The order permits disclosure in response to lawful compulsory process if the producing party receives timely notice. Within 60 days after final disposition, including appeals, recipients generally must return or destroy confidential material, subject to an archival-copy exception for counsel’s specified case files and work product. The order continues after the litigation ends, and the court retains jurisdiction to enforce it or impose contempt sanctions.

Ruling

Judge Alison J. Nathan entered the stipulated confidentiality agreement and protective order. The order binds the parties and other people with notice of it, but expressly states that the court has not made a finding that any designated material is confidential and retains discretion to decide whether to give particular material confidential treatment. This opinion is a discovery and confidentiality order; it does not resolve the underlying claims.