Maragh v. The Roosevelt Island Operating Corporation

Background

The court addressed a proposed confidentiality and protective order for the pretrial phase of the action. The order states that the court found good cause for an appropriately tailored order. The opinion identifies Othniel Evans Maragh as the plaintiff and The Roosevelt Island Operating Corporation and other defendants as the defendants. It also states that Maragh was proceeding without a lawyer.

Information Covered

The order requires people subject to it—including the parties, their representatives, agents, experts, consultants, third parties providing discovery, and others with actual or constructive notice—to protect material designated as “Confidential.” A producing party may designate nonpublic business, commercial, financial, or personal information when disclosure is restricted by law or could, in the producing party’s good-faith view, harm privacy, business, commercial, financial, or personnel interests.

The order specifically treats the following as confidential pending the court’s entry of the order: listed portions of Maragh’s September 26, 2020 deposition; listed portions of his October 6, 2020 deposition; a February 6, 2015 New York State Department of Labor Division of Equal Opportunity Development/Governor’s Office of Employee Relations investigation report; and the Roosevelt Island Operating Corporation Public Safety Division’s investigation report.

Disclosure and Use Limits

Maragh may use confidential material only to prepare or present his case in this action. The order generally permits disclosure to the parties, insurers, counsel and their litigation staff, certain people identified on documents, qualifying witnesses, experts or advisers, mediators or arbitrators, deposition transcription services, litigation-support services, the court and its staff, and other people approved in writing by the person who designated the material. Witnesses, experts or advisers, and mediators or arbitrators must receive the order and sign a nondisclosure agreement before receiving the material.

The order requires notice and reasonable efforts to address an accidental disclosure to an unauthorized person. It also provides procedures for handling information that was inadvertently disclosed but is claimed to be protected by attorney-client privilege, attorney work-product protection, or confidentiality. The receiving party generally must return or destroy that information within seven business days after notice, and the disclosing party must provide a privilege log if applicable. The receiving party may ask the court to require production of the information, and the disclosing party retains the burden of establishing protection.

Sealing and Challenges

The order says confidential material filed with the court, and filings revealing it, must be filed under seal in accordance with the court’s rules. The court’s accompanying clarification states that no material may be filed under seal without a prior court order approving that filing. The court had not reviewed the referenced documents and made no finding that they were actually confidential. Any such determination would be made through document-by-document review, subject to the presumption favoring public access to judicial documents.

A party may object to a confidentiality designation or request additional disclosure limits before trial by serving written notice explaining the grounds. If the parties cannot promptly agree, they may seek a ruling from the court. The order survives termination of the litigation, including appeals, and requires confidential material to be returned or destroyed within 30 days after final disposition unless the producing party permits destruction instead. During the case, the court retains jurisdiction as needed to enforce the order or impose sanctions.

Ruling

Judge Jesse H. Furman ordered the parties and other covered persons to follow the confidentiality and protective-order terms, and stated that the order was effective immediately. The clerk was directed to mail a copy to Maragh. The judge also stated that, if Maragh had not been given an opportunity to confer about the proposed order and had an objection, he could file a letter by February 2, 2021, for the court to consider modifying the order. The order does not decide the merits of the underlying action or finally determine that the listed documents are confidential.