The City of Philadelphia v. Bank of America Corporation

Background

The parties submitted a proposed stipulated protective order under Federal Rule of Civil Procedure 26(c), which permits courts to protect certain discovery from improper disclosure, and Federal Rule of Evidence 502(d), which addresses the effect of producing privileged material. The order applies to discovery in this action and any cases consolidated with it. It covers documents, electronically stored information, testimony, interrogatory responses, deposition materials, tangible items, and information derived from those materials.

The order creates categories for “Confidential” and “Highly Confidential” material. A producing party may use those labels for information it reasonably and in good faith believes contains confidential trade secrets, proprietary business information, nonpublic personal or customer information, or highly sensitive information whose unauthorized disclosure could cause competitive, commercial, or financial harm. Personal data and personally identifying information must be treated as Highly Confidential.

Restrictions on use and disclosure

Protected material may be used only to prosecute, defend, appeal, settle, or enforce insurance rights relating to this action. It may not be used for unrelated business or commercial purposes, other investigations or proceedings, or evaluating other potential claims. The order limits access to specified categories of people, including counsel, certain current employees, qualified experts and consultants who sign an agreement to follow the order, court personnel, mediators, court reporters, professional vendors, certain document recipients and witnesses, and relevant insurer or auditor employees.

Highly Confidential material is subject to more restrictive access rules than Confidential material. The order places additional limits on access by known competitors to certain recent transactional, financial, employment, technical, customer, and marketing information. It also restricts plaintiffs and their counsel from using personal data or personally identifying information obtained solely from defendants’ documents to contact defendants’ customers unless the court orders otherwise.

Confidentiality procedures

The order establishes procedures for labeling documents and other discovery, including deposition transcripts, electronic files, native-format documents, interrogatory responses, admissions, and expert reports. It allows bulk designations in some circumstances, while permitting a receiving party to challenge a designation. The parties must first meet and confer; if they cannot resolve the dispute, the challenging party may seek relief from the court. The material remains protected at the designated level until the court rules.

The order also addresses inadvertent failures to designate material and permits a producing party to correct a designation. Unauthorized disclosures require notice to the designating party, reasonable efforts to retrieve copies, notice to the recipient of the order’s terms, and a request that the recipient sign the required agreement.

Court filings, ending the case, and clawback

A party seeking to file protected material, personal data, or other sensitive information must file it in redacted form or under seal in accordance with the court’s rules and procedures. The order does not itself authorize filing documents under seal. Within 60 days after final termination of the action, including appeals, receiving parties generally must take steps to prevent access to protected material and return or destroy it, subject to stated exceptions for legal requirements and archival copies retained by outside counsel. The order remains effective after the action ends, and the court retains jurisdiction to enforce it.

The clawback provisions allow a producing party to reclaim privileged material without waiving the privilege, provided the party gives notice. They also establish procedures for reclaiming wholly nonresponsive personal, confidential, or sensitive material that was produced inadvertently. Receiving parties must generally return, sequester, or destroy such material, while preserving limited copies needed to challenge a clawback request.

Ruling

The court entered the stipulated protective order. Judge Furman specifically stated that the court had not reviewed the documents and therefore made no determination that any particular document was confidential. Any such determination would be made later, if necessary, through document-by-document review under the court’s procedures and the presumption favoring public access to judicial documents. The court did not “so order” any provision that purported to permit filing documents under seal without a prior court order.