Oliver v. City of New York

Background

The parties jointly requested a confidentiality agreement and protective order under Federal Rule of Civil Procedure 26(c). They sought protection for 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.

Confidential information

The order defines “Discovery Material” as information of any kind produced or disclosed during discovery. A producing party may designate material as “Confidential” only when it reasonably and in good faith believes the material falls within the order’s listed categories. Material subject to disclosure under New York’s Freedom of Information Law or otherwise publicly available may not be designated confidential.

The listed categories include previously undisclosed financial information; ownership or control information about a nonpublic company; business, product-development, and marketing plans; personal or intimate information, including medical records; information identifying current or former New York City Department of Education students; Department of Education personnel and investigative records; personnel records concerning individual New York City Police Department defendants; disciplinary and investigative records concerning those defendants; police-camera and body-worn-camera video; police internal-investigation files related to the matter; and the report of Akeem Oliver’s March 22, 2019 arrest, subject to the order’s provision ending confidentiality for most of that report if it is offered as trial evidence. The court may later give confidential status to other categories.

Disclosure and use

People subject to the order may not disclose designated confidential material except as the order permits. Permitted recipients include the parties and their insurers, counsel and litigation support staff, outside vendors working for counsel, mediators or arbitrators, document authors and addressees, potential witnesses, experts and other specialized advisers, deposition stenographers, and the court and its personnel. Mediators, potential witnesses, experts, and other specialized advisers must receive the order and sign the required nondisclosure agreement before receiving the material. Recipients may use confidential material only to prosecute or defend this case and related appeals, not for another litigation or purpose.

The order does not waive objections to discovery, privileges, or protections, and it does not decide whether any document, testimony, or other evidence will be admissible at trial. It also permits disclosure when required by a lawful subpoena, compulsory process, law, or government agency, subject to notice to the producing party when reasonably possible and, if allowed by the deadline, at least 10 days before disclosure.

Court filings and challenges

A party filing confidential material must publicly file a redacted version and file the unredacted version under seal. The parties must also provide unredacted courtesy copies to the court and opposing counsel. A party seeking to file material under seal must simultaneously submit a letter brief and supporting declaration explaining, on a particularized basis, why continued sealing is justified. The order states that the court may unseal documents if the required specific findings are not made and that the court is unlikely to seal material introduced as evidence at trial.

A party may object to a confidentiality designation before trial by giving written notice stating the grounds for the objection. If the parties cannot promptly resolve the dispute, counsel must bring it to the court under the court’s individual practices. A party seeking additional disclosure limits, such as an attorneys’-eyes-only designation in extraordinary circumstances, must follow a similar procedure.

Ruling and continuing obligations

Judge Paul G. Gardephe ordered the parties and all other covered persons to comply with the protective order, subject to contempt sanctions. Within 60 days after final disposition of the action, including appeals, recipients must return or destroy confidential material and certify that they have not kept copies or other reproductions, except that specially retained attorneys may keep archival copies of specified case materials that remain subject to the order. The order survives termination of the litigation, and the court retains jurisdiction as necessary to enforce it or impose contempt sanctions.