Deluca v. GPB Automotive Portfolio, LP

Background

The plaintiffs, Barbara Deluca and Drew R. Naylor, brought the action on behalf of themselves and other similarly situated limited partners against GPB Automotive Portfolio, LP; GPB Holdings II, LP; GPB Capital Holdings, LLC; Ascendancy Alternative Strategies, LLC; Ascendant Capital, LLC; Axiom Capital Management, Inc.; David Gentile; Mark Martino; Jeffrey Lash; and Jeffrey Schneider. The parties submitted a proposed stipulation and protective order to govern confidential information exchanged during discovery.

Protective-order terms

The order defines confidential information as documents, testimony, and information that contain trade secrets, proprietary business information, competitively sensitive information, or other information that the designating party reasonably believes could harm its business or the business of its customers or clients if disclosed.

A party may designate documents or testimony as confidential by marking documents, making a designation on the deposition record, or providing written notice. A receiving party may challenge a designation in writing. The designating party then has 14 days to respond, followed by a required good-faith meeting between the parties within seven days. If the dispute remains unresolved, the receiving party may ask the court to remove the designation. Until the court rules, the material remains confidential, and the designating party bears the burden of supporting the designation.

Confidential information may be disclosed only to specified people, including personnel assisting with the case, counsel and their support staff, retained experts and consultants, the court and its personnel, mediators, certain document recipients, deposition officers, and properly informed trial or deposition witnesses. The receiving party and its counsel may use the information only for this litigation.

Experts and consultants must sign a consent before receiving confidential information. Deposition transcripts are treated as confidential for 15 days after a deposition, during which the parties may identify particular pages or lines for continued confidential treatment. The order also establishes procedures for designating non-party documents and testimony as confidential.

When confidential discovery material is filed with the court, the parties must publicly file a redacted version and file the unredacted version under seal. The court retains discretion over whether material submitted in connection with a motion or proceeding will receive confidential treatment. The order warns that material introduced as evidence at trial is unlikely to remain sealed.

The order permits parties to use confidential material during depositions and requires witnesses who receive it to agree to follow the order. It also covers inadvertently produced privileged or otherwise protected information: the producing party may request its return, and the receiving party must promptly return it and destroy copies. The order states that extracts and summaries of confidential information are also confidential and that disclosure does not waive other objections or privileges.

Duration and disposition

The protective order remains binding after the litigation ends, subject to stated exceptions and any permission or further court order modifying it. Within 60 days after final termination of the litigation by settlement or completion of appeals, confidential information generally must be returned or destroyed, although counsel may retain specified litigation records and work product.

Ruling and classification

Judge Lewis A. Kaplan ordered the proposed protective order on February 9, 2021. This was a discovery and confidentiality order; it did not resolve the parties' underlying claims or defenses.