A.D. v. Department of Corrections and Community Supervision
- Philip Halpern
- 7:19-cv-00361
- U.S. District Court · Southern District of New York
- 13
In A.D. v. Corrections Officer Ralph Rohl, Judge Halpern approved a stipulated protective order governing confidential discovery.
The order binds the parties and their representatives, agents, experts, consultants, counsel, service providers, witnesses, mediators or arbitrators, third parties providing discovery, court personnel, and other people with actual or constructive notice of the order. It also limits the plaintiff’s access to material designated “Highly Confidential.”
What happened
In A.D. v. Corrections Officer Ralph Rohl, A.D. and the defendants asked the court to protect sensitive information that might be exchanged during the evidence-gathering stage of the lawsuit. The order concerns discovery and does not decide the underlying claims.
The order limits disclosure of information marked confidential, including certain private financial, business, ownership, marketing, and personal information. It allows disclosure only to specified people, such as the parties, lawyers, experts, witnesses, mediators, vendors, and the court, and generally requires written confidentiality agreements from some recipients.
Judge Philip M. Halpern approved the parties’ agreement and its addendum on April 20, 2021. The addendum created an “attorneys’ eyes only” category for certain materials from the New York State Department of Corrections and Community Supervision and limited the plaintiff’s access to those materials.
The detailed version
- A.D. v. Department of Corrections and Community Supervision · No. 7:19-cv-00361
- Philip Halpern
- Apr. 20, 2021
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 found good cause for a confidentiality order covering the pretrial phase of the case.
Confidential information
The order permits a producing party to designate as confidential only material that it reasonably and in good faith believes includes previously undisclosed financial information, information about ownership or control of a nonpublic company, business or marketing information, personal or intimate information, or another category later given confidential status by the court. The order explains how confidential designations must be marked on documents and how they may be made for deposition testimony and exhibits.
A party may later designate previously produced material as confidential by notifying earlier recipients. Parties may object to a designation or request additional limits on disclosure, including an “attorneys’ eyes only” designation, and may bring unresolved disputes to the court.
Disclosure and use
Confidential discovery material may be disclosed only to specified recipients, including the parties, insurers, counsel, litigation support staff, service providers, mediators or arbitrators, certain people identified in a document, potential witnesses, experts, stenographers, and the court. Witnesses, experts, mediators, and arbitrators who receive the material must first read the order and sign a nondisclosure agreement. Recipients may use the material only to prosecute or defend this case and related appeals, not for business, competitive, or other litigation purposes.
The order also addresses subpoenas, precautions against unauthorized disclosure, and material accidentally disclosed despite attorney-client privilege or attorney work-product protection. In that situation, the receiving party generally must return or destroy the material within five business days, while retaining the right to ask the court to order production. After the case and appeals end, recipients generally must return or destroy confidential material within 60 days, subject to limited archival retention by litigation counsel.
Court filings and enforcement
A party seeking to file confidential material under seal must publicly file a redacted version and provide the court with the unredacted version under seal. The order states that the court retains discretion over whether to keep material confidential when submitted in connection with a motion or proceeding, and that material introduced at trial is unlikely to remain sealed. The court retains jurisdiction to enforce the order and impose contempt sanctions.
The addendum further provides that, unless the court or defendants consent in writing, plaintiff’s counsel may not give the plaintiff copies of confidential material, although counsel may show or discuss confidential material with the plaintiff as necessary to prepare the case. It allows defendants to designate documents from the New York State Department of Corrections and Community Supervision’s Office of Special Investigations as “Highly Confidential,” meaning “Attorneys’ Eyes Only.” Plaintiff’s counsel may not show or discuss that material with the plaintiff, but may request that particular documents be redesignated as confidential if discussion with the plaintiff is necessary.
Disposition
Judge Philip M. Halpern ordered the stipulated confidentiality agreement and protective-order addendum. The opinion does not rule on the merits of A.D.’s claims or the defendants’ defenses.
Read the full 13-page opinion on CourtListener, the free public archive maintained by the Free Law Project.