Askins v. NYC Transit

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 could be disclosed during discovery. The court stated that it found good cause for an appropriately tailored order governing the pretrial phase of the case.

Confidentiality Designations

The order applies to discovery material, meaning information of any kind produced or disclosed during discovery. A producing party may designate only the portions it reasonably and in good faith believes contain specified types of information, including previously undisclosed financial information; information about ownership or control of a nonpublic company; business plans, product-development information, or marketing plans; personal or intimate information about an individual; and categories the court later gives confidential status.

The producing party or its counsel must mark protected material as “Confidential” and provide a version with the confidential information redacted for future public use. The order sets separate procedures for designating deposition testimony and exhibits. During the 30 days after a deposition, the entire transcript must be treated as confidential. A producing party may also later correct an omission by designating material that was previously produced without a confidentiality designation.

Permitted Disclosures and Use

People subject to the order may disclose confidential discovery material only to specified recipients. These include the parties and their insurers; counsel and their assigned staff; outside vendors or service providers working on the case; mediators or arbitrators; people identified as authors or recipients of a document; potential witnesses; experts and other specialized advisers; deposition transcriptionists; and the court and appellate court personnel.

Before confidential material is given to certain witnesses, experts, advisers, mediators, or arbitrators, the recipient must receive the order and sign a nondisclosure agreement. Confidential discovery material may be used only to prosecute or defend this case and any appeals, not for another lawsuit or proceeding. The order does not restrict a party’s rights concerning its own documents or information.

Court Filings, Challenges, and Enforcement

The order does not decide whether designated material is actually confidential, waive objections or privileges, or determine whether evidence is admissible at trial. The court retained discretion over whether to give confidential treatment to particular materials. It warned that materials introduced at trial are unlikely to remain sealed without the required specific findings.

A party may object to a confidentiality designation before trial. If the parties cannot resolve the dispute, counsel must bring it to the court under the court’s individual practices. A party seeking additional disclosure limits, such as an attorneys’-eyes-only restriction, must follow a similar procedure.

When confidential material is filed with the court, the parties must publicly file a redacted version and file the unredacted version under seal with an application and supporting declaration explaining the need for sealing. The order also permits disclosure in response to lawful compulsory process or a government demand, subject to notice to the producing party when reasonably possible.

Within 60 days after the final disposition of the case, including appeals, recipients generally must return or destroy confidential material and certify that they have not retained copies or other reproductions. Counsel retained for the case may keep archival copies of specified case materials, but those copies remain subject to the order. The order survives the end of the litigation, and the court retained jurisdiction to enforce it and impose contempt sanctions.

Disposition

Judge Gregory H. Woods ordered the parties and other persons covered by the order to comply with the stipulated confidentiality agreement and protective order. The order is an ancillary discovery ruling and does not decide the underlying claims.