Rivera v. Connolly

Background

The parties, through counsel, jointly requested a 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 confidentiality order covering the pretrial phase of the case.

Terms of the Order

The order allows a producing party to mark portions of discovery material as “Confidential” when the party reasonably and in good faith believes the material contains previously undisclosed financial information, information about ownership or control of a nonpublic company, business or marketing information, personal or intimate information, or another category later protected by the court.

People subject to the order generally may not disclose confidential discovery material except as the order permits. Authorized recipients include the parties, certain insurers and their counsel, attorneys and litigation support personnel, outside vendors, mediators or arbitrators, specified people identified in documents, certain witnesses, experts and advisers, deposition transcription personnel, and the court. Some recipients must first receive the order and sign a nondisclosure agreement.

The order restricts use of confidential discovery material to prosecuting or defending this case and related appeals. It does not waive objections to discovery, attorney-client privilege, or work-product protection, and it does not decide whether evidence is admissible at trial.

Sealing and Confidentiality Disputes

A party filing material under seal must publicly file a redacted version and provide a letter brief and supporting declaration explaining why continued sealing is justified. The court retains discretion over whether to keep material confidential when it is submitted in connection with a motion or other proceeding. The order warns that material introduced at trial is unlikely to remain sealed.

A party may object to a confidentiality designation or request additional disclosure limits. If the parties cannot promptly resolve the issue, counsel must bring the dispute to the court under the judge’s individual practices.

Inadvertent Disclosure and End of the Case

If privileged or work-product material is accidentally disclosed, the disclosure does not itself waive the protection. After receiving a claim of inadvertent disclosure, the recipient generally must return or destroy the material within five business days and provide counsel’s certification. The producing party must then provide a privilege log, and the recipient may ask the court to order production. The producing party retains the burden of establishing that the material is privileged or protected.

Within 60 days after final disposition of the case, including appeals, recipients must return confidential discovery material or destroy it with the producing party’s permission and certify that they retained no copies or reproductions. Attorneys specifically retained for the case may keep archival copies of specified litigation files, but those copies remain subject to the order. The order survives the end of the litigation, and the court retains jurisdiction to enforce it and impose contempt sanctions.

Disposition

The court entered the stipulated confidentiality and protective order. This opinion does not rule on the merits of the parties’ claims or defenses.