Kelly v. The City of Mount Vernon

Nature of the order

This is a stipulated confidentiality agreement and protective order under Federal Rule of Civil Procedure 26(c). The parties, through counsel, requested protection for nonpublic and competitively sensitive information that could be exchanged during discovery. The court found good cause for an appropriately limited order governing the pretrial phase of the case and ordered covered people to comply.

Who is covered

The order applies to the parties, their corporate parents, successors, assigns, representatives, agents, experts, consultants, third parties providing discovery, and other people with actual or constructive notice of the order. The caption identifies Robert Kelly as the plaintiff, and the signature section identifies him as proceeding without a lawyer. The defendants include The City of Mount Vernon, New York, and other defendants identified by “et al.” in the caption.

What may be designated confidential

A producing party may designate only the portion of discovery material that it reasonably and in good faith believes contains:

- Previously undisclosed financial information; - Previously undisclosed information about ownership or control of a nonpublic company; - Previously undisclosed business plans, product-development information, or marketing plans; - Personal or intimate information about an individual; or - Another category that the court later gives confidential status.

For most discovery material, the producing party or its lawyer must clearly mark the protected portion as “Confidential” and provide a public-use copy with the confidential information redacted. Deposition testimony may be designated during the deposition or by written notice identifying specific pages and lines within 30 days after the deposition. During that 30-day period, the entire deposition transcript must be treated as confidential. A producing party may also correct an earlier failure to designate material by notifying prior recipients in writing before trial.

Limits on disclosure and use

Confidential discovery material may be disclosed only to categories listed in the order, including the parties and their insurers, lawyers and assigned support staff, outside litigation vendors, mediators or arbitrators, certain people identified on a document, potential witnesses, experts and specialized advisers, deposition transcription personnel, and the court and its personnel.

Before receiving confidential material, a mediator, arbitrator, potential witness, expert, or specialized adviser must receive the order and sign the required nondisclosure agreement. Counsel must keep those signed agreements and provide them to opposing counsel before the person testifies or when the case concludes, whichever comes first.

Recipients may use confidential material only to prosecute or defend this case and related appeals. They may not use it for business, commercial, competitive, or other litigation purposes. The order does not restrict a party's rights concerning its own documents or information.

Sealing and confidentiality disputes

A party filing material under seal must also publicly file a letter brief and supporting declaration explaining specifically why continued sealing is justified. The court retains discretion over whether to keep designated material confidential when it is submitted in connection with a motion or other proceeding that could lead to a court decision. The order warns that material introduced at trial is unlikely to remain sealed, even if previously designated confidential.

A party may object to a confidentiality designation before trial by giving written notice stating the grounds with particularity. A party seeking additional disclosure limits, such as an attorneys' eyes only designation in extraordinary circumstances, may use a similar procedure. If the parties cannot resolve the issue, the affected lawyers must bring it to the court under the judge's individual practices.

Privileges, subpoenas, and end of the order

The order states that an accidental disclosure of material protected by attorney-client privilege or attorney work-product protection does not waive that protection. After a claim of accidental disclosure, the receiving party generally must return or destroy the material within five business days and provide a certification. The disclosing party must then provide a privilege log, and the receiving party may ask the court to order production. The party claiming privilege or protection retains the burden of establishing it.

The order does not prevent a party from producing confidential material in response to a lawful subpoena or other compulsory legal process. The party receiving the request must notify the producing party as soon as reasonably possible and, if time permits, at least 10 days before disclosure. The producing party bears the burden of opposing compliance if it chooses to do so.

Within 60 days after the final disposition of the case, including appeals, recipients must return or destroy confidential material and certify that they retained no copies or other reproductions. Lawyers specifically retained for the case may keep archival copies of specified case records and work product, but those copies remain subject to the order. The order survives the end of the litigation, and the court retains jurisdiction to enforce it and impose contempt sanctions.

Disposition

On April 22, 2021, Judge Philip M. Halpern entered the stipulated protective order. The order governs discovery confidentiality and does not resolve the merits of any claim or defense.