Fair Housing Justice Center, Inc. v. Gotham Organization Inc.

Background

The parties 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 tailored order governing the pretrial phase of the action.

The opinion is a protective-order ruling; it does not address the merits of the underlying dispute.

Confidential Information

The order defines “Discovery Material” as information produced or disclosed during discovery. A producing party may designate only material that it reasonably and in good faith believes includes certain types of information, such as:

- Previously undisclosed financial information, including profitability reports or estimates, fees, royalty rates, payments, sales reports, and margins. - Previously undisclosed information about ownership or control of a nonpublic company. - Confidential business plans, product-development information, marketing plans, research, technical information, or financial information. - Personal or intimate information about an individual. - Employment, financial, medical, or other personal information about non-parties, including tenants, tenancy applicants, employees, and former employees. - Other information that the court later gives confidential status.

The producing party or its counsel generally must clearly mark the protected portions as “Confidential” and provide a redacted copy for future public use. Deposition testimony and exhibits may be designated during the deposition or within 30 days afterward. During that 30-day period, the entire deposition transcript must be treated as confidential. A producing party may also later designate material that was previously produced without a confidentiality designation, subject to providing replacement copies within two business days.

Disclosure and Use Limits

Confidential discovery material may be disclosed only to categories of people listed in the order. These include the parties and certain insurers and insurance counsel; counsel and their assigned staff; outside vendors; mediators or arbitrators; people identified on the face of a document as its author or recipient; potential witnesses; experts and other specialized advisers; deposition stenographers; and the court and its personnel.

Before confidential material is disclosed to a mediator or arbitrator, potential witness, expert, or specialized adviser, that person must receive the order and sign the required nondisclosure agreement. Counsel must retain the signed agreements and produce them to opposing counsel before the person testifies or when the case ends, whichever occurs first.

Recipients may use confidential material only to prosecute or defend this action and any appeals. The order does not restrict a party’s rights concerning its own documents or information. It also does not waive objections to discovery, privilege, or other protections, and it does not decide whether evidence is admissible at trial.

Court Filings and Sealing

A party filing confidential discovery material, or a filing that discloses such material, must publicly file a redacted version and submit the unredacted version under seal in accordance with the court’s rules. A party seeking to file material under seal must submit an application and supporting declaration that specifically justify sealing. The order warns that the court may unseal documents if the required specific, on-the-record findings are not made. It also states that the court is unlikely to seal or otherwise protect discovery material introduced at trial, even if it was previously designated confidential or sealed.

Challenges, Compulsory Process, and End of the Case

A party may object to a confidentiality designation by giving written notice that explains the grounds of 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 “attorneys’ eyes only” treatment in extraordinary circumstances, must follow a similar procedure.

The order does not prevent a party from producing confidential material in response to a lawful subpoena, other compulsory process, a legal requirement, or a government agency’s demand. The party must give written notice to the producing party as soon as reasonably possible and, if time permits, at least 10 days before disclosure. The producing party bears the burden of opposing the required disclosure if it chooses to do so.

People with access to confidential material must take reasonable precautions against unauthorized or accidental disclosure. Within 60 days after the final disposition of the action, including appeals, recipients must return the material or destroy it if the producing party permits destruction. The producing party may request written certification that no copies or other reproductions were retained. Counsel specifically retained for the action may keep archival copies of specified case materials, but those copies remain subject to the order.

The order does not apply to productions made before November 17, 2020, because none of those productions contained documents marked confidential by a party. The order continues after the litigation ends, and the court retains jurisdiction as necessary to enforce it or impose contempt sanctions.

Ruling

Judge Gregory H. Woods entered the stipulated confidentiality agreement and protective order on November 21, 2020. The ruling governs discovery and confidentiality procedures only; it does not decide the parties’ underlying claims or the confidentiality, admissibility, or sealing status of any particular material.