Steinhauser v. The Nature Conservancy
- Jesse Furman
- 1:20-cv-07250
- U.S. District Court · Southern District of New York
- 12
In Steinhauser v. The Nature Conservancy, Judge Furman entered a protective order governing confidential discovery and inadvertent privileged disclosures, while limiting sealing.
Eric Steinhauser, The Nature Conservancy, their counsel, and other people who receive or handle information designated under the protective order, including experts, consultants, litigation-support providers, and deposition witnesses.
What happened
In Steinhauser v. The Nature Conservancy, the parties asked the court to approve rules for handling confidential and commercially sensitive information exchanged during discovery. The order covers documents, testimony, electronically stored information, and other discovery materials.
The order limits access to confidential information and more restricted “attorneys’ eyes only” information, requires certain recipients to sign a declaration, and permits challenges to confidentiality designations. It also provides procedures for returning, destroying, or sequestering inadvertently produced privileged material and protects against waiver of privilege. The parties may not file materials under seal without a separate court order.
Judge Jesse Furman ordered the stipulation, but stated that the court had not reviewed the documents and therefore made no finding that they were confidential. The order instead preserves later, document-by-document review and the presumption favoring public access to judicial documents.
The detailed version
- Steinhauser v. The Nature Conservancy · No. 1:20-cv-07250
- Jesse Furman
- Mar. 3, 2021
Background
Eric Steinhauser and The Nature Conservancy, through their counsel, stipulated to a protective order and a clawback agreement under Federal Rule of Evidence 502(d) and (e). The order governs designated documents, deposition testimony, interrogatory responses, electronically stored information, and other discovery materials produced in the action.
Confidentiality designations
The order allows either party, acting in good faith, to designate information as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.” “Attorneys’ eyes only” information is also confidential and is intended for information that is private, commercially sensitive, or not already known to the receiving party. The parties may not use protected information outside the prosecution or defense of this action.
Confidential information may be disclosed to the court, the parties, their counsel and litigation-support staff, and specified consultants, experts, service providers, document recipients, and deposition witnesses. Those additional recipients generally must first sign the declaration attached as Exhibit A. Attorneys’ eyes only information may not be disclosed directly to the parties and is subject to additional restrictions. Before disclosing it to an outside expert or consultant, the disclosing party must provide identifying information and a current résumé or curriculum vitae; the other party has five business days to object. If the objection is unresolved, disclosure requires a court order.
Challenges and court filings
A party challenging a confidentiality designation must give written notice and attempt to resolve the dispute informally. If that fails, the challenging party must file a motion identifying the specific information and the objection. Until an agreement or court order changes the designation, the parties must continue treating the information as protected.
The parties’ proposed order stated that confidential information should be filed under seal. Judge Furman did not so order Paragraph 12, or any other provision that would allow filing under seal without a prior court order. The court stated that sealing would be decided document by document under the court’s rules and the presumption favoring public access to judicial documents.
Clawback and privilege protections
Under the order’s Rule 502(d) and (e) provisions, producing privileged or otherwise protected documents—including electronically stored information and metadata—does not itself waive the privilege or protection, including as to third parties or other federal and state proceedings. If a receiving party discovers material that is facially privileged or otherwise protected, it must notify the producing party, identify the material, and return or sequester it while awaiting the producing party’s response.
The producing party generally has ten business days after receiving notice to state whether it will assert protection and provide a privilege log. If the producing party notifies the receiving party of an inadvertent production, the receiving party generally has ten business days to return, sequester, or destroy the specified material and related copies, notes, abstracts, or compilations. These steps do not prevent the receiving party from asking the court to determine that the material was not protected, but the receiving party may not argue that the production waived the privilege or that the producing party failed to take reasonable preventive or corrective steps.
Duration and ruling
The protective order becomes effective when signed by counsel. Within sixty days after a final non-appealable judgment or order concluding the action, or a complete settlement, recipients must destroy confidential information and documents derived from it, subject to limited archival retention by counsel. Counsel retaining archival materials remains bound by the confidentiality obligations.
The court ordered the parties’ stipulation, subject to the stated limitation on sealing. Judge Furman expressly found only that the stipulation binds the parties to treat designated materials as confidential; he did not determine that any particular document is actually confidential. Such a determination may be made later through document-by-document review.
Read the full 12-page opinion on CourtListener, the free public archive maintained by the Free Law Project.