Vozzolo v. Air Canada
- Philip Halpern
- 7:20-cv-03503
- U.S. District Court · Southern District of New York
- 10
In Vozzolo v. Air Canada, Judge Halpern approved a protective order governing confidential discovery materials and their use.
The order binds the parties, their corporate parents, successors and assigns, representatives, agents, experts, consultants, third parties providing discovery, and other people with actual or constructive notice of the order. It also governs counsel, vendors, witnesses, mediators, arbitrators, and others who receive designated confidential material.
What happened
In Vozzolo v. Air Canada, the parties asked the court to set rules protecting nonpublic and competitively sensitive information exchanged during discovery. The plaintiff brought the case on behalf of himself and others similarly situated.
The order allows parties to mark certain financial, ownership, business, personal, and other court-approved information as confidential. It limits disclosure to specified people, requires nondisclosure agreements for some recipients, and generally allows the information to be used only for this case and related appeals.
Judge Philip M. Halpern found good cause and issued the stipulated protective order. The order also sets procedures for sealing court filings, handling accidentally disclosed privileged material, returning or destroying confidential material after the case ends, and enforcing the order.
The detailed version
- Vozzolo v. Air Canada · No. 7:20-cv-03503
- Philip Halpern
- Dec. 16, 2020
Background
The parties, through counsel, requested a protective order under Federal Rule of Civil Procedure 26(c). The order governs nonpublic and competitively sensitive information that may be exchanged during discovery in this action. The court found good cause for an appropriately limited order covering the pretrial phase.
Confidential Information
A producing party may designate only material that it reasonably and in good faith believes includes previously undisclosed information in specified categories, including:
- financial information, such as profitability reports or estimates, fees, royalties, guarantees, sales reports, and margins; - information about ownership or control of a nonpublic company; - business plans, product-development information, or marketing plans; - personal or intimate information about an individual; or - another category that the court later approves as confidential.
The producing party must mark the protected material and provide a version with the confidential information redacted for future public use. Special procedures apply to deposition transcripts and exhibits. The entire deposition transcript is treated as confidential for 30 days after the deposition, during which time specific pages or lines may be designated.
A producing party may also correct an earlier failure to designate material by notifying prior recipients in writing before trial. The order does not waive objections to discovery, waive legal protections, or decide whether evidence may be admitted at trial.
Permitted Disclosures and Use
Confidential material may be disclosed to the parties, their insurers and insurer counsel, counsel and their case staff, outside vendors working on the case, mediators or arbitrators, certain people identified on a document, potential witnesses, experts or other specialized advisers, deposition transcription providers, and the court and its personnel. Mediators, arbitrators, witnesses, experts, and specialized advisers must first receive the order and sign the required nondisclosure agreement.
Recipients may use confidential material only to prosecute or defend this action and related appeals. They may not use it for business, commercial, competitive, or unrelated litigation purposes. The order does not restrict a party's rights concerning its own documents or information.
Sealing and Challenges
A party filing material under seal must also publicly file a redacted version and submit a letter brief and supporting declaration explaining, on a particularized basis, why continued sealing is justified. The court retains discretion over whether to treat designated material as 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, including an attorneys'-eyes-only restriction in extraordinary circumstances. If the parties cannot promptly resolve the dispute, counsel must bring it to the court under the judge's individual practices.
Privileged Material and End of Case
If privileged or work-product material is accidentally disclosed, the disclosure does not waive the protection. After receiving notice, the recipient generally must return or destroy the material within five business days and certify that action. The producing party must then provide a privilege log, and the recipient may ask the court to require production. The producing party retains the burden of showing that the material is privileged or otherwise protected.
Within 60 days after the final resolution of the action, including appeals, recipients must return or, if the producing party permits, destroy confidential material and certify that they retained no copies or summaries. Lawyers specifically retained for the action may keep archival copies of specified case-related materials, but those copies remain covered by the order. The order continues after the litigation ends, and the court retains authority to enforce it and impose contempt sanctions.
Ruling
Judge Philip M. Halpern ordered the parties and other people covered by the order to follow these confidentiality, disclosure, filing, preservation, and enforcement requirements. This opinion addresses discovery confidentiality and does not decide the underlying claims between Emilio L. Vozzolo and Air Canada.
Read the full 10-page opinion on CourtListener, the free public archive maintained by the Free Law Project.