Johnston v. New York Power Authority

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 confidentiality order covering the pretrial phase of the action.

Order’s main requirements

The court ordered parties, their representatives, agents, experts, consultants, third parties providing discovery, and other people with actual or constructive notice of the order to comply with it. Violations could result in contempt.

A producing party could designate only portions of discovery material that it reasonably and in good faith believed included previously undisclosed financial information, ownership or control information about a nonpublic company, business or marketing plans, personal or intimate information, or another category later given confidential status by the court. Designations generally had to be clearly marked, and the producing party had to provide a redacted copy for public use when applicable.

Deposition testimony and exhibits could be designated during the deposition or within 30 days afterward. During that 30-day period, the entire deposition transcript had to be treated as confidential. A producing party could also correct an earlier failure to designate material by notifying prior recipients in writing.

Permitted disclosures and use

Confidential discovery material could be disclosed to specified people, including the parties and their insurers, counsel and litigation staff, vendors working on the case, mediators or arbitrators, certain people identified on a document, potential witnesses, experts and consultants, stenographers, and the court and its personnel. Before disclosure to certain witnesses, experts, consultants, mediators, or arbitrators, the recipient had to receive the order and sign the required non-disclosure agreement.

Recipients could use confidential material only to prosecute or defend this action and any appeals, not for business, commercial, competitive, or other litigation purposes. The order did not restrict a party’s rights concerning its own documents or information.

Sealing and confidentiality disputes

A party filing documents under seal had to file a public redacted copy and provide a letter brief and supporting declaration explaining, on a particularized basis, why continued sealing was justified. The court retained discretion over whether to keep designated material confidential when submitted in connection with a motion or other proceeding. The order warned that material introduced at trial was unlikely to remain sealed.

A party could object to a confidentiality designation or request additional disclosure limits, including an attorneys’-eyes-only restriction, by written notice stating specific grounds. If the parties could not resolve the issue, they were to present the dispute to the court under the judge’s individual practices.

Privilege and disposition of materials

The order stated that an inadvertent disclosure of material protected by attorney-client privilege or the attorney work-product doctrine would not automatically waive that protection. After a claim of inadvertent disclosure, the receiving party generally had five business days to return or destroy the material and provide counsel’s certification. The producing party then had five business days to provide a privilege log. The receiving party could ask the court to compel production, and the court could conduct a private review of the material.

Within 60 days after final disposition of the action, including appeals, recipients generally had to return or destroy confidential discovery material and certify that they had retained no copies or reproductions. Counsel specifically retained for the action could keep an archival copy of certain case records and attorney work product, which remained subject to the order. The order survived the end of the litigation, and the court retained jurisdiction to enforce it and impose contempt sanctions.

Disposition and significance

The court issued the stipulated confidentiality and protective order. It did not decide the merits of Johnston’s claims against the New York Power Authority or rule on the admissibility of evidence. Judge Philip M. Halpern’s order was therefore an ancillary discovery ruling governing the handling of confidential information.